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DUKE 

UNIVERSITY 

LIBRARY 


Treasure  %oom 


CONGRESS 

THE  LIBRARY*  1789 

Class  ...■3:.X-'^.:^-\  0 

Book ;...0„B.  .5. 


opo  1—1123 


THE 


MARITIME    LAW 


OF 


EUROPE. 


H-e 


THE 

MARITIME   LAW 

OF 

EUROPE. 


BY  M.  D.  A.AZUm, 

w 

tATE    SESATOn    AND    JUDGE    IN    THE    COMMERCIAL    AND    MARITIME    COURT 

OF    NICE,    MEMBER   OF   THE    ACADI.MIES    OF    SCIENCES,    AT   TURIN, 

NAPLES,    FLORENCE,    MODENA,    ALEXANDRIA,    CARARA, 

ROME,    AND    TRIESTE  J 

MEMBER  OF  THE  ATHENIUM  OF  ARTS,   AND  OF  THE  ACADEMY  OP  LEGISLATION, 

AT    PARIS,    AND   OF   THE    ACADEMY    OF    ARTS    AND    SCIBNCES, 

AT    MARSEILLES. 


Quid  deceat,  quid  non  ;  quh  virtus,  quh  ferat  error, 

HoR.de  Art.  Poet. 


IN  TWO  VOLUMES. 
TRANSLATED  FROM  THE  FRENCH. 


VOL  I. 


NEW-YORK : 

BRINTED    BY    GEORGE    lORMAN,    64,    WATER-STREET, 

FOR  I.  RILEY  &  Co. 

■♦■ 

1806. 


V.  \ 


DisTRici^  OF  New-York,  ss. 

Be  it  remembered.  That  on  tlie  twdftli  day  of  April,  in  the 
thii'tjelh  year  of  the  Independence  of  tlie  United  States  of  Ame- 
rica, William  Johnson,  of  the  said  District,  hadi  deposited 
(L.  S.)    in  tliis  office  the  Title  of  a  Book,  the  right  whereof  he  claims,  as 
autlior,  in  tlie  words  following,  to  wit : 

'^  THE  MARITIME  LAW  OF  EUROPE, 

BY  M.  D.  A.  AZUNJ, 
Late  Senator  and  Judge,  In  the  Commercial  and  Maritime  Com:!  of  Nice, 
Membei"  of  the  Academies  of  Sciences  at  Turin,  Naples,  Florence.  Mo- 
dena,  Alexandria,  Carara,  Rome,  and  Trieste  ;  Member  of  tlie  Atlie- 
neum  of  Arts,  and  of  the  Academy  of  Legislation,  at  Pai-is,  and  of  tlie 
Academy  of  Arts  and  Sciences,  at  Marseilles. 

Quid  deceat,  quid  non  ;  quo  virtus,  quoferat  error. 

Wok.  de  Art.  Poet. 

IN  TWO  VOLUMES. TRANSLATED  FROM  THE  FRENCH. 

VOLUME  I." 

In  conformity  to  the  Act  of  the  Congress  of  the  United  States,  entitled, 
"  An  act  for  tlie  encouragement  of  learning,  by  securing  the  copies  of 
"  Maps,  Charts,  and  Books,  to  the  authors  and  proprietors  of  such  copies, 
"  during  the  times  therein  mentioned  :"  And  also,  to  an  act,  entitled, 
"  An  Act  supplementary  to  an  Act  entitled,  "  An  Act  for  the  encourage- 
"  ment  of  learning,  by  seciu-ing  the  copies  of  Maps,  Charts,  and  Books,  to 
"  the  authors  and  proprietors  of  such  copies,  during  the  times  tlierein 
"  mentioned,  and  extending  the  benefits  tliereof  to  the  arts  of  Designing, 
■'  Engi-aving,  and  Etching,  Historical  and  other  prints." 

EDWARD  DUNSCOMB, 
Clerk  of  the  District  of  Nezv-York. 


3  -  MAY 


/r.  /I 


ADVERTISEMENT, 

BY  THE  AUTHOR. 

1  HE  work  here  presented  to  the  pub- 
lic is  essentially  diflbrent  from  my  first 
performance,  publislied  in  the  Italian  lan- 
guage, in  1795,  under  the  tide  o'^  Sis  te- 
nia universale  dei  Princijiii  del  diritto  ma- 
rittimo  deirEurolia,  which  was  translated, 
at  Paris,  in  1798,  from  the  second  edi- 
tion, published  at  Trieste,  in  1796. 

Notwithstanding  the  inaccuracies  of 
that  translation,  it  has  been  honoured  with 
the  approbation  of  the  public  ;  its  prin- 
ciples have  been  cited  in  the  national  tri- 
bunals,(l)  and  it  has  been  often  referred 


(l)  See  the  Opinw?i  of  Garaf^  member  of  the 
Council  of  Ancienls^  (now  a  Senator)  on  the  resolution 
of  the  25th  Junuarij,  17f)9,  relative  to  maritime  cap- 
tures., at  the  sittings  of  tlie  22d  February,  1799, 
pages  12,  28,  and  30. 


vi  ADVERTISEMENT, 

to  as  an  authority,  by  legislators,  by  ma- 
ritime courts,  (2)  and  by  lawyers  engaged 
in  the  study  of  this  most  interesting  part 
of  public  law. 

Pleased  with  the  flattering  success  of 
this  production  in  France,  I  saw,  with  re- 
gret, the  many  errors  into  wliich  the  trans- 
lator had  fallen,  and  the  innumerable  in- 
stances in  which  he  had  mistaken  the 
sense  of  the  author,  which  proved  that 
he  was  not  very  conversant  with  the  Ita- 
lian language,  and  much  less  so  wdth  the 
science  of  public  law. 

It  became  my  duty  to  correct  the  sense 
of  the  translation,  by  the  text  of  that  part 
of  the  original  I  have  preserved. 

The  present  work,  in  which  I  have 
given  greater  scope  to  my  ideas,  and  have 
recast  and  placed  in  new  order  the  articles 
contained  in  the  former  publication,  and 
to  which  considerable  additions  have  been 


(2)  See  the  different  Memoirs  to  the  Council  of 
Prizes,  and  the  numerous  opinions  delivered  by  the 
Commissary  of  the  Government  to  the  Council. 


ADVERTISEMENT.  vii 

made,  suggested  by  the  existing  circum- 
stances of  Europe,  required  the  adoption 
of  a  different  title,  more  adapted  to  the 
new  plan  I  had  marked  out. 

The  first  part  is  enlarged  by  a  sketch 
of  the  origin  and  progress  of  naviga- 
tion, by  a  more  full  exposition  of  the  prin- 
ciples, merely  stated  before,  in  regard 
to  the  liberty  of  the  seas,  and  by  a  com- 
plete history  of  the  nations  who  have  laid 
claim  to  maritime  empire  from  the  re- 
motest ages  to  the  present  time. 

Among  the  new  matters  in  the  second 
part,  the  most  deserving  of  attention,  are, 
an  article  on  the  origin  and  causes  of  naval 
wars  ;  a  succinct  analysis  of  the  late  laws 
of  the  French  empire,  concerning  mari- 
time captures,  and  of  the  modes  of  pro- 
ceeding in  their  ajudlcation  in  the  council 
of  prizes,  established  by  the  government, 
at  Paris  ;  an  account  of  the  laws  of  the 
different  powers  of  Europe,  In  regard  to 
recaptures  ;  and,  lastly,  several  other 
articles,     exhibiting    views  of  the   sub- 


viii  ADVERTISEMENT. 


ject  which  my  experience  and  study  of 
this  interesting  branch  of  the  law  of  na- 
tions have  shown  to  be  necessary.'" 


*  DoMiNicK  Albert  Azuni,  was  born  at  Sas- 
sari,  in  the  island  of  Sardinia.  This  island  is  about 
700  Italian  miles  in  circumference ;  its  greatest  length 
is  175  miles,  and  its  greatest  breadth,  about  100. 
Its  principal  towns  are,  Cagliari  and  Sassari,  each 
containing  an  university,  and  about  30,000  inhabi- 
tants. M.  Azuni,  in  1802,  published  at  Paris,  A 
Geographical,  and  Natural  History  of  Sardinia^  in 
two  volumes  8vo,  a  work  of  considerable  merit,  and 
containing  much  interesting  information  of  an  im- 
portant island,  but  little  known  to  the  generality  of 
readers. 

His  other  works  are,  1 .  An  universal  Dictionary 
of  Mercantile  Jurisprudence,  in  4to,  printed  at  Nice, 
1786,  and  1788;  2.  4  5th  vol.  4to,  containing  77ie 
perfect  Mentor  of  Merchants,  printed  at  Trieste,  in 
1796  ;  Z.  A  Dissertation  on  the  Mariner  s  Compass, 
read  before  the  Academy  of  Florence,  in  1795,  and 
reprinted,  with  additions,  at  Venice,  in  1797. ..,T. 


THE 

TRANSLATOR'S  PREFACE. 


JMaRITIME  Commerce,  while  it  connects 
the  civilized  nations  of  the  world  together  hy 
the  ties  of  mutual  interest,  augments  the  means 
of  their  prosperity  and  happiness,  and  multi- 
plies the  sources  of  individual  enjoyment,  ren- 
ders them,  at  the  same  time,  more  dependent  on 
each  other.  Physical  and  moral  causes,  of  the 
most  irresistible  nature,  have  induced  the  peo- 
ple of  the  United  States  to  engage,  with  uriex- 
ampled  ardour,  in  commercial  pursuits.  This 
commerce,  that  gives  animation  and  vigour  to 
all  the  operations  of  industry,  and  without 
which  the  people  would  sink  into  indolence, 
or  become  ignorant  and  ferocious,  as  it  draws 
them  nearer  to  foreign  countries,  exposes  them 
also  to  the  influence  of  those  conflicts  which 
agitate  the  repose  of  distant  nations.  For  it  is 
one  of  the  many  evils  of  war,  that  its  action  is  not 
confined  to  the  immediate  parties  in  the  con- 
test, but  strikes,  with  greater  or  less  force,  all 

who  come  witliin  its  reach. 
Vol..  r.  5^  ^ 


X  TRANSLATOR'S  PREFACE. 

Remote  from  the  great  theatre  of  political 
and  miUtary  ambition,  the  United  States  arc 
happily  exempt  from  that  direct  pressure  which 
might  compel  them  to  take  part  in  the  wars 
of  Europe  ;  and  they  are  impelled  by  interest 
and  policy,  to  observe  a  perfect  neutrality  be- 
tween the  belligerent  nations  of  that  continent. 
To  maintain  this  fortunate  and  advantageous 
position,  for  a  long  period  of  time,  will  be  at- 
tended with  no  little  difficulty,  and  may  re- 
quire consummate  prudence  and  address.  The 
surest  guide,  in  this  embarrassing  situation,  is 
a  clear  and  accurate  acquaintance  with  the 
principles  by  which  the  intercourse  between 
belligerents  and  neutrals  is  to  be  regulated. 
Whatever  relates,  therefore,  to  the  maritime 
law  of  Europe,  or  which  can  throw  light  on 
the  obscure  and  dubious  path  of  neutral  con- 
duct, cannot*  fall  of  being  interesting  to  the 
people  of  America. 

Notwithstanding  the  gfeat  importance  of  the 
subject,  the  most  distinguished  vvriters  on  the 
law  of  nations,  GrotiUs,  Puffendorf,  Wol- 
Fius,  Vattel,  and  others,  have  passed  it  over 
with  very  slight  attention,  deterred,  perhaps, 
by  the  variety  of  delicate  and  difficult  ques- 
tions, to  which  it  gave  rise.  The  nature  of 
sovereignty,  the  rights  of  war  and  peace,  the 
functions  and  privileges  of  ambassadors  ;  the 
laws  of  negotiation,  the  formation  of  treaties. 


i 


TRANSLATOR'S  PREFACE.  xi 

.md  the  rules  of  their  interpretation  ;  these, 
and  many  other  subjects,  have  been  discussed 
by  them  with  great  learning  and  ability  ;  but 
they  appear  to  have  been  inattentive  to  the 
changes  produced  in  the  interests  and  ati'airs  of 
nations,  by  the  extension  of  navigation  and 
commerce.  The  age  of  commerce  has  suc- 
ceeded to  the  age  of  chivalry,  and  the  influ- 
ence of  this  new  spirit  is  to  be  discovered  in 
all  the  political  transactions  of  Europe.  The 
cases  which  give  rise  to  the  discussion  of  neu- 
tral and  belligerent  rights,  have  been  increas- 
ed and  infinitely  diversified  ;  and  in  proportion 
to  the  progress  of  refinement  and  civilization, 
belhgerent  nations  have  been  more  disposed  to 
listen  to  the  voice  of  reason  and  justice,  and  to 
examine  and  respect  the  claims  of  neutrals, 
whose  rights  have  been  infringed  by  the  ope- 
rations of  war.  Appeals  to  the  law  of  nations 
by  neutral  states,  who  are  generally  the  weak- 
est, are  listened  to  with  more  attention  than  in 
former  times.  For  it  is  not  true,  as  some  have 
pretended,  because,  law  and  right  are  some- 
times disregarded,  or  trodden  under  foot  by 
military  power,  that  law  and  justice  are  empty 
names ;  and  that  a  science,  which  teaches  the 
reciprocal  duties  of  sovereign  states,  is  a  vain 
and  useless  study.  Such  a  theory  would  con- 
found all  ideas  of  right  and  wrong,  and  subvert 
the  whole  system  of  morality  and  jurispry-- 


xii         TRANSLATOR'S  PREFACE. 

dence.  If  well  founded,  it  would  equally  ap- 
ply to  individuals,  and  to  a  large  class  of  moral 
duties  which  do  not  come  under  tlie  cognisance 
of  municipal  law,  and  are  not  enforced  by  its 
sanctions.  The  very  existence  of  social  inter* 
course,  depends  on  the  observance  of  many 
rules  of  conduct,  which  are  left  to  the  con- 
science of  each  member  of  society,  and  his  own 
sense  of  moral  obligation.  If  a  knowledge  of 
these  duties,  if  the  precepts  of  morality  and  re- 
ligion, have  no  influence  in  restraining  men 
from  acts  of  injustice,  the  volumes  which  con- 
tain the  lessons  of  wisdom,  and  the  maxims  of 
sages,  might  be  destroyed  as  useless  lore  ;  pub- 
lic instructors  might  abandon  their  schools  ;  the 
teachers  of  the  sublime  doctrines  of  revelation, 
might  cease  to  exercise  their  sacred  functions, 
and  mankind  be  left  to  the  blind  impulse  of  ap- 
tite  and  passion,  unrestrained  by  any  law  but 
that  of  force.  Interest,  and  a  regard  to  repu- 
tation, it  is  true,  often  impel  individuals  to  the 
practice  of  virtue,  when  purer  and  nobler  mo- 
tives are  unfelt,  or  disregarded.  But  the  observ- 
ance of  justice  and  good  faith,  is  equally  the  in- 
terest of  nations ;  and,  whatever  may  be  the  se- 
cret views  of  crafty  and  unprincipled  ministers 
or  sovereigns,  they  seldom  fail,  in  all  their  pub- 
lic declarations,  to  pay  homage  to  the  law  of 
nature  and  nations,  to  acknowledge  its  author 
yity,  and  to  appeal  to  its  principles  as  the  rule 


TRANSLATOR'S  PREFACE.         xiii 

of  their  conduct.  This  evinces  that  the  law  is 
not  entirely  devoid  of  infiuence,  or,  at  least, 
that  they  are  not  regardless  of  the  voice  of  fame, 
nor  insensible  to  the  opinion  of  the  world. 
Nor  can  a  religious  mind  divest  itself  of  the 
belief,  that  guilty  sovereigns,  though  they  may 
triumph,  for  a  season,  in  the  possession  of  un- 
just power,  and  riot  in  the  spoils  of  their  iniqui- 
ty, will,  sooner  or  later,  meet  with  the  chas- 
tisement merited  by  their  crimes.  This  belief, 
fortified  by  the  history  of  political  states,  fur- 
nishes an  awful  sanction  to  those  principles  of 
eternal  justice,  which  ought  to  regulate  the 
conduct  of  nations.  In  this  view,  it  is  of  no 
little  moment,  that,  in  all  our  controversies,  we 
should  have  law  and  right  on  our  side,  that,  if 
compelled  to  take  arms,  in  their  defence,  we 
may  feel  the  energy  of  conscious  rectitude,  and 
an  assurance  of  the  protection  of  heaven.* 

To  know  our  rights,  it  is  necessary  to  be  ac- 
quainted with  the  laws  on  which  they  are 
founded  ;  every  inquiry,  therefore,  which  con- 
ducts us  to  a  knowledge  of  those  laws,  is  de- 
serving of  attention,  and  maritime  law,  which 
comprehends  the  principles  by  which  neutral 
commerce  is  to  be  regulated  in  time  of  war, 


*  Thrice  is  lie  arm'd,  wlio  hath  his  quarrel  just  ; 
And  he  but  naked,  though  lock'd  up  in  steel. 
Whose  <:onscience  with  injustice  is  corrupted. 

Shaksfere. 


siv         TRAKSLATOR'S  PREFACE. 

merits  a  distinguished  place  in  the  Code  of 
nations.  On  this  subject,  Hubner  led  the 
way,  and  has  been  the  first  to  bestow  upon 
it  that  particular  attention  which  is  due  to  its 
intricacy  and  importance.  There  is,  however, 
so  much  confusion  and  contradiction  in  his 
ideas,  and  some  of  his  notions  are  so  fanciful, 
that  whatever  may  be  the  merit  of  his  work  in 
other  respects,  it  is  now  little  esteemed.  Gal- 
lia ni  and  Lampredi,  two  Italian  writers, 
have  treated  of  the  rights  and  duties  of  neutral 
nations,  in  a  manner  more  just  and  scientific, 
but  not  perfectly  satisfactory.  M.  Azuni  is 
the  first  person  who  has  digested  all  the  prin- 
ciples of  maritime  law  into  a  regular  system. 
He  appears  to  have  been  well  fitted  by  incli- 
nation and  study,  as  well  as  by  education 
and  long  experience,  to  execute  a  work, 
which  required  various  and  extensive  learn- 
ing, sound  judgment,  and  a  liberal  and  phi- 
lanthropic spirit.  His  book  may,  therefore, 
be  regarded  as  new,  and  one  that  bids  fair  to 
become  a  standard  authority  on  all  questions 
connected  with  the  laws  of  maritime  com- 
merce and  navigation.  The  Translator  trusts 
that  no  apology  is  requisite  for  presenting 
the  American  reader  with  a  work  that  con" 
tains  so  full  and  comprehensive  a  view  of  one 
of  the  most  important  objects  in  the  great 
Code  of  public  law. 


TRANSLATOR'S  PREFACE.         xv 

The  historical  survey  of  the  progress  of  navi- 
gation and  commerce,  and  of  maritime  law, 
contained  in  the  first  volume,  will  he  found 
instructive,  and  a  suitable  introduction  to  the 
subjects  examined  in  the  subsequent  part  of 
the  work.  In  the  parallel  between  France 
and  Great-Britain,  in  the  second  chapter,  some 
readers  will  be  disposed  to  accuse  the  author 
of  partiality,  and,  for  that  reason,  may  feel  a 
prejudice  against  his  whole  performance.  This 
partiality,  however,  is  to  be  discerned  in  a  few 
articles  only,  added  to  the  present  edition, 
printed,  during  the  last  year,  at  Paris,  and  might 
have  been  omitted  without  injury  to  the  main 
body  of  the  work,  which,  except  some  correc- 
tions and  real  improvements,  remains  essentially 
the  same,  as  in  the  second  edition  of  179^. 

In  translating  a  work  of  this  nature,  accura- 
cy was  more  to  be  studied  than  elegance  ;  but 
while  aiming  at  fidelity,  care  has  been  taken 
to  avoid  foreign  idioms.  A  nice  observer,  it  is 
probable,  may  detect  some  tinct  of  the  original 
language  ;  but  it  is  hoped,  that  this  imperfec- 
tion will  be  overlooked,  if  it  should  seldom 
occur,  and  the  version,  on  the  whole,  be 
found  faithful  and  accurate.  The  Translator 
has  taken  the  liberty  of  subjoining  a  few  notes, 
which  he  flatters  himself  will  not  be  deemed 
altogether  useless.  He  would  have  indulged 
further  in   the  practice,   had  he  not  been  re- 


xvi        TRANSLATOR'S  PREFACE. 

strained  by  the  fear  of  overloading  the  text,  al* 
ready  furnished  with  ample  notes  and  citations 
by  the  author.  In  works  of  this  kind,  notes 
and  references  are  often  requisite  to  give  au- 
thority and  force  to  what  is  asserted  in  the  text. 
Every  reader  may  not  be  so  fastidious  as  to  de- 
spise this  shew  of  erudition,  and  may  some- 
times be  pleased  to  find  relief  from  the  dry  pe- 
rusal of  the  text,  in  a  classic  allusion,  or  some 
lively  annotation  of  the  author. 

The  notes  of  the  translator  are  distinguished 
by  the  marks  of  reference,  (*+:}:  1|)  and  by  the 
initial  letter  T. . . 

WILLIAM  JOHNSON. 

New-York,  180^. 


THfJ 

AUTHOR'S  PREFACE. 


I,  1  HE  nature  and  important  objects  of 
maritime  law,  and  its  relation  to  the  interests 
of  nations,  render  it  the  rule  of  intercourse  be- 
tween governments,  and  the  means  of  main- 
taining equal  justice  in  all  their  political  affairs. 
In  this  view,  and  from  its  close  connexion  with 
the  universal  law  of  nations,  and  the  conven- 
tional law  of  Europe,  it  deserves  to  be  studied 
by  statesmen,  by  publicists,  and  by  all  who 
aspire  to  the  honourable  station  of  public  mi- 
nisters, or  aim  at  a  faithful  discharge  of  their 
diplomatic  functions. 

II,  A  work,  exhibiting,  in  a  complete  and 
scientific  manner,  the  rights  and  duties  of  na- 
tions in  regard  to  maritime  commerce,  has 
long  been  wanted.  All  the  writers  on  public 
law,  however,  have  uniformly  forborn  to  ap- 
ply their  knowledge  and  industry  to  this  in- 
teresting subject. 

Vol.  I.  ^  i-T  "? 


4viu  AUTHOR'S  PREFACE. 

III.  In  an  age,  when  the  attention  of  the 
the  powers  of  Europe  is  generally  directed 
towards  the  progress  of  commerce,  with  an 
(Energy  and  perseverance,  unknown  to  former 
times,  it  is  inconceivable,  that  not  a  single 
writer  has  attempted  to  trace  out  a  system  of 
maritime  jurisprudence  and  diplomacy;  though 
all  of  them,  perhaps,  have  admitted  the  neces^ 
sity  of  legal  and  determinate  rules,  by  which 
the  rights  of  nations,  in  peace  and  war,  may 
be  fixed  on  a  permanent  basis. 

IV.  The  interesting  parts  of  the  law  of  na- 
tions, which  relate  to  the  foundation  and 
sources  of  national  strength  and  prosperity, 
have  been  discussed  in  their  full  extent ;  but 
the  work  has  been  executed,  by  publicists,  in 
a  scholastic  manner.  They  have  contented 
themselves  with  laying  down  a  few  detached 
principles,  which  have  been  attacked  by  a  va- 
riety of  discordant  opinions,  for  the  most  part 
founded  on  the  private  interest  of  this,  or  that 
state,  or  on  the  particular  notions  prevailing 
in  the  schools,  or  produced  by  existing  cir- 
cumstances. The  consequence  has  been,  that 
none  of  these  principles  could  be  reduced  to 
practice. 

V.  In  the  course  of  the  present  work,  I 
shall  have  frequent  occasion  to  examine  and 
(Compare  those  opinions.  It  is  only  necessary 
to  observe,   in  this  place,  that  they  are  so  va- 


\ 


AUTHOR'S  PREFACE.  xix 

nous,  that  it  is  difficult,  on  this  subject,  to  ap- 
proach tlie  truth,  tew  traces  of  which  are  to 
be  found  in  the  writings  of  pubUcists.  Still, 
there  is  a  wide  difference  between  a  truth  faint- 
ly seen,  and  confounded  with  a  mass  of  bold 
conjectures,  and  a  truth  exhibited  in  its  full 
and  unclouded  light.  I  have  thought  it  my 
duty  to  guard,  as  much  as  possible,  against  the 
influence,  which  authors,  deservedly  esteemed 
by  the  public,  naturally  possess  over  the  minds 
of  their  readers.  With  this  view,  I  have  first 
consulted  ancient  writers,  without  regarding 
the  commentaries,  and  explanations  subjoined, 
and  which  too  often  pervert  the  sense  of  the 
original  text.  I  have  next  examined  the 
sources  from  whence  modern  publicists  have 
derived  their  opinions,  which  I  have  compared 
with  the  principles  of  that  part  of  the  general 
and  conventional  law  of  Europe,  that  forms  the 
subject  of  the  present  work. 

VI.  It  is  not  enough  to  point  out  the  errors  of 
writers,  imless  the  causes  of  error  be  also  disco- 
vered. It  is  requisite  to  ascend  from  one  cause 
to  another,  until  we  arrive  at  the  first.  There 
is,  without  doubt,  one  general  and  primordial 
point,  from  which  all  the  paths  which  lead  to 
error  diverge.  Xcar  this  point,  anotlier  may, 
perhaps,  be  seen,  at  which  commences  the  sin- 
gle road  that  leads  to  truth.     It  is  this  point. 


XX  AUTHOR'S  PREFACE. 

that  I  shall  endeavour  to  reach  in  the  ensuing 
work. 

VII.  Maritime  law,  and  the  principles  of 
which  it  is  constituted,  are  not  composed  of 
fanciful  opinions,  and  doubtful  systems.  This 
law  rests  on  the  general  basis  of  the  law  of  na- 
ture and  nations,  on  the  positive  regulations  of 
the  conventional  law  of  Europe,  and  on  those 
usages,  established  among  nations  by  necessity, 
the  utility  of  which  has  been  proved  by  long 
experience,  and  on  which  time  has  impressed 
a  venerable  character  that  commands  our 
respect.  In  this  manner,  many  rules  that  de- 
rive the  force  of  legal  authority  from  the  tacit 
consent  of  nations,  have  been  insensibly  esta- 
blished. It  is  this  tacit  consent,  that  gives  va- 
lidity, and  a  binding  force  to  the  European  law 
of  nations. 

Vm.  The  empire  of  the  high  sea,  the  ex- 
tent of  jurisdiction  over  the  parts  of  the  sea  ad- 
jacent to  the  shore,  the  legislation  of  ancient 
and  modern  maritime  nations,  the  rights  of 
belligerents  and  neutrals,  maritime  captures, 
and  their  adjudication,  &c.  &c.  are  subjects 
which  have  been  treated  of  by  modern  pub- 
licists ;  but  no  writer  has  yet  considered  them 
together  in  one  point  of  view,  so  as  to  form, 
from  the  various  principles  which  have  been 
established,  a  regular  and  connected  system, 
constituting  a  permanent   and  invariable  code 


,'  .  'a.' 

1 


AUTHOR'S  PREFACE.  xxi 

of  law,  to  which  all  might  have  recourse,  in 
the  great  variety  of  cases,  and  diversity  of  cir- 
cumstances, which  might  arise. 

IX.  Nations  have  continued  in  doubt  and 
uncertainty  on  these  subjects,  as  much  from  a 
fear  of  injuring  themselves  as  of  hurting  others. 
The  maritime  usages  of  nations,  therefore,  have 
been  regarded  as  a  delicate  and  difficult  part  of 
the  law  of  nations,  and  has  remained  in  its 
pristine  state  of  doubt  and  indecision,  involved 
in  a  chaotic  mass  of  scholastic  disquisitions. 

X.  This  evil  would  not  have  existed,  had 
publicists,  directed  by  the  principles  of  natural 
reason,  the  only  guide  of  nations,  examined 
the  spirit  of  these  usages,  and  traced  them  to 
their  source.  They  would,  then,  have  clearly 
seen  their  influence  on  the  conduct  and  policy 
of  nations,  and  have  ascertained  the  original 
cause  and  motive  of  their  adoption,  from  which 
might  be  deduced  the  degree  of  their  binding- 
force. 

XI.  The  uniformity  of  the  natural  and  so- 
cial relations  extending  to  all  men,  and  bind- 
ing them  together  in  fraternal  ties,  has  proved 
the  absolute  necessity  of  a  general  society,  com- 
posed of  all  the  particular  societies  spread  over 
the  surface  of  the  earth.  These  relations,  not 
founded  on  special  conventions,  but  upon  the 
eternal  and  immutable  laws  of  nature,  cannot 
be    effaced     by    particular    institutions.       All 


xxii  AUTHOR'S  PREFACE, 

men  are  equally  destined  by  their  Creator  to 
multiply,  until  their  number  is  equal  to  the 
mass  of  subsistence,  which  the  country  they 
inhabit  is  capable  of  producing.*  This  uni- 
versal law,  operating  with  irresistible  force, 
impels  them  to  the  continued  exercise,  and  im- 
provement of  their  intellectual  faculties  in 
works  of  art,  to  stimulate  the  earth  to  perpetual 
fertility  by  their  labour,  thereby  to  increase  its 
productions,  to  communicate  moral  and  phy- 
sical knowledge,  to  exchange,  by  means  of 
commerce,  the  various  products  of  their  in- 
dustry, and,  in  a  word,  to  endeavour  to  attain 
that  portion  of  felicity  of  which  human  nature 
is  susceptible. 

XII.  By  the  establishment  of  commerce 
and  exchange,  each  nation,  certain  of  pro- 
curing whatever  is  necessary  to  supply  its 
wants,  cultivates  the  earth,  and  applies  its  in- 
dustry to  the  best  advantage.  Incapable  of 
living  without  each  other's  aid,  men  are  led, 
by  motives  of  private  interest,  to  cherish  reci- 
procal intercourse,  and  to  form  connexions  of 
mutual  friendship.  In  this  point  of  view,  the 
earth  may  be  considered  as  occupied  by  one 
great  nation,  composed  of  those  smaller  politi- 
cal societies,  scattered  over  its  surface,   though 


*  See  an  interesting  enquiry  on  this  subject  by  Mr.  Malthus,  in 
his£5*rt^o/i  the  Prindple  of  Population,  2d  edit.  London,  1803.  ...T. 


AUTHOR'S  PREFACE.  xxiii 

infinitely  diversified,  in  their  origin,  religion, 
manners,  wants,  language,  colour,  and  a 
thousand  other  circumstances,  as  various  as 
the  different  climates  they  inhabit.  Hence, 
all  nations  are  bound  to  interchange  acts  of 
hospitality  and  kindness,  and  to  observe  that 
justice,  fidelity,  and  respect  towards  each  other, 
which  are  demanded  by  tlie  interest  of  the 
great  families  of  mankind  in  general,  as  well 
as  of  each  constituent  part  of  the  national 
body. 

XIII.  From  the  combination  of  causes  and 
effects,  which  constitutes  the  universal  law  of 
nature,  and  from  the  moral  and  political  or- 
ganization of  the  human  race,  the  condition  of 
every  individual  must  influence,  impercepti- 
bly, it  is  true,  the  condition  of  mankind  in  ge- 
neral ;  much  more  sensible  must  be  the  influ- 
ence of  a  whole  society  on  the  state  of  otlier 
societies.  Hence  it  follows,  that  nature  has 
established  among  nations  the  same  rights  and 
duties  that  exist  between  individuals.  Thus 
what  constitutes  the  best  possible  state  of  an  in- 
dividual, constitutes  the  best  possible  state  of 
a  nation.  The  public,  or  general  interest  of  a 
nation  is  no  other  than  thu  product  of  the  dif- 
ferent Interests  of  its  individual  members. 

XIV.  There  can  be  no  riglits  without  du- 
ties ;  the  last  are  always  the  measure  of  the 
first.     Rights  and  duties  must  not  be  consider- 


xxiv  AUTHOR'S  PREFACE. 

cd  as  two  parallel  lines,  which,  when  extend- 
ed, never  meet :  they  are,  on  the  contrary, 
converging  lines,  which  blend,  sooner  or  later, 
and  unite  at  their  intersecting  point.  Such  is 
the  inherent  constitution  of  man,  and  of  the 
objects  that  surround  him,  which  it  has  pleas- 
ed the  Author  of  nature  to  establish.  Whoe- 
ver claims  to  have  his  own  rights  regarded, 
must  expect  it  only  in  consequence  of  the 
obligation  he  is  under  to  respect  the  rights  of 
others.  A  nation,  therefore,  can  rest  its  right 
of  property  on  no  other  solid  basis,  than  that 
duty  which  it  imposes  on  itself  never  to  in- 
fringe the  rights  of  property  in  other  nations. 

XV.  All  nations  are  thus  strictly  bound  to 
cultivate  justice  towards  each  other,  to  observe 
it  scrupulously,  and  carefully  to  abstain  from 
every  act  that  may  violate  its  precepts.  Each 
one  ought  to  render  to  others  their  due,  to  re- 
spect their  rights,  and  not  to  disturb  the  peace- 
able enjoyment  of  them.  Hence  each  nation 
possesses  the  right  of  preventing  others  from 
depriving  it  of  its  property,  or  prerogatives ;  for, 
by  so  doing,  it  acts  in  conformity  with  its 
duties,  which  is  precisely  what  constitutes 
right. 

XVI.  For  this  reason,  the  property  of  a  na- 
tion ousht  to  be  considered  as  a  sacred  and 
inviolable  right,  which  cannot  be  subjected  to 
the  Jaws  of  a  sovereign  ;  for  two  distinct  na- 


AUTHOR'S  PREFACE.  xxv 

tions,  not  acknowledging  any  superiority  over  \/ 
each  other,  cannot  sacriHce  their  national  pro- 
perty to  any  higher  or  common  interest. 
Nations  are  considered  as  moral  persons  living 
in  a  state  of  natural  liberty  and  independence. 
They  acknowledge  no  laws  but  those  of  na- 
ture, in  the  decision  of  their  controversies 
and  quarrels.  This  law  of  nature,  therefore, 
considered  in  relation  to  the  interest  of  states, 
is  called  the  universal  law  of  nations.  Its  bind- 
ing force  extends  over  all  the  nations  of  the 
earth.  It  is  immutable,  since  it  is  founded  on 
the  unchangeable  laws  of  nature.  It  is  the 
common  and  necessary  law  of  all  the  nations 
of  the  world,  not  of  any  one  in  particular.* 


*  An  ingenious  and  learned  writer,  Eohert  Ward,  esquire,  in  Iiis 
work,  entitled.  An  Enquiry  into  the  Foundatioji  and  History  of  the 
Law  of  Nations  in  Europe,  &c.  denies  that  there  is  any  such  uni- 
versal law  of  nations,  immutable  and  imprescriptible,  binding  upon 
all  societies  of  men.  He  asserts,  that  revealed  religion,  not  natural 
reason,  is  the  only  true  basis  of  moral  law,  and  of  the  law  of  nature  and 
nations  ;  that  this  law  is  applicable  only  to  particular  sets  or  classes 
oi  nations,  who  admit  the  same  religious  and  moral  systems ;  that 
the  law  of  nations,  therefore,  as  established  among  tiie  Chrisiian 
powers  of  Europe,  can  have  no  binding  force  on  the  Mahometan 
or  infidel  nations  of  Asia,  or  Africa.  In  the  discordant  opinions  of 
■writers,  and  the  contradictory  laws  and  usages  of  mankind,  he  finds 
a  specious  ground  for  his  theory  ;  but  though  it  may  be  true  in  re- 
lation to  that  part  of  the  law  of  nations,  properly  called  conven- 
tional,  it  would  not  be  difficult  to  demonstrate,  tliat,  in  regard  to 
the  iaiv  of  nature,  his  theory  is  not  only  unfounded,  but  of  a  dan- 
gerous tendency.  But  this  is  not  the  place  (or  a  discussion  ot 
Vol..  I.  !Cf*  i 


xxvi  AUTHOR'S  PREFACE. 

XVII.  It  sometimes  happens,  that  two  na- 
tions resolve  to  form  an  alUance  with  each 
other,  and  to  estabHsh  between  them,  what  is 
called  the  conventional  laiv  of  nations,  the  ef- 
fect of  which,  in  respect  to  them,  is  similar  to 
that  of  the  civil  or  common  law,  between  two 
individuals.  In  this  case  only,  and  in  conse- 
quence  of  their  having  so  agreed  for  their 
common  advantage,  the  right  of  property  in 
each  nation,  may  experience  some  infringe- 
ment ;  but,  excepting  this  case,  there  is  no 
other  in  which  it  can  be  impaired,  or  vio- 
lated. 

XVIII.  From  the  principles  thus  establish- 
ed, it  follows,  that  the  obvious  and  common 
interest  of  all  nations,  naturally  and  ne- 
cessarily leads  them  to  unite  and  confederate 
together,  in  order  to  strengthen  their  rights  of 
property,  by  a  kind  of  universal  guaranty. 
From  these  primitive  rights  and  duties,  are  de- 
rived the  actual  rights  and  duties  of  nations 
towards  each  other.  From  this  clear  demon- 
stration of  their  origin,  every  mind  is  disposed 
to   recognise  their   existence,  to    form  a  just 


such  extent  and  magnitude.  It  might  be  enough  to  say,  that  (he 
position  of  Azuni,  is  supported  by  the  authority  oi  Fiiffe?idorf,  Hook- 
er, Locke,  Cu'iiherland,  Burkmaqui,  Taylor,  Butler,  and  many  others 
whose  names  have  long  been  held  in  the  highest  veneration  for 
profound  and  accurate  thinking,  as  well  as  for  great  learning  and 
i:catenes3.,.,T. 


AUTHOR'S  PREFACE.  xxvii 

estimate  of  tlicir  value,  and  to  be  convinced 
that  they  are  in  no  degree  arbitrary. 

XIX.  To  ascertain  the  just  extent  of  the 
authority  and  binding  force  of  the  usages  and 
customs  of  nations,  it  is  necessary  to  rise  su- 
perior to  the  arbitrary  interpretations,  contra- 
dictions and  uncertainties,  in  regard  to  the  law 
of  nations,  which  false  politics  often  produce, 
by  considering  only  the  practice  and  usages  of 
Europe,  without  investigating  the  origin  and 
reasons  of  the  law,  and  without  distinguishing 
the  abuses  and  even  infractions  of  the  law,  from 
the  law  itself.  I  have  found  no  other  way  of 
attaining  this  end,  but  by  consulting  the  unal- 
terable principles  of  universal  legislation,  and 
by  scrutinizing  with  severity  the  controversies 
of  civil  societies,  in  order  to  ascertain  the  jus- 
tice or  injustice,  legality  or  illegahty,  of  their 
usages  and  customs. 

XX.  Such,  in  substance,  is  the  object  of  this 
work.  I  have  endeavoured  to  unfold  the 
principles  of  the  maritime  law  of  Europe,  to 
fix  the  limits  of  the  legitimate  empire  of  pow- 
ers on  the  high  sea,  and  over  that  portion  of 
it  which  laves  the  shores  of  their  respective 
territories,  to  give  the  history  of  ancient  and 
modern  nations  who  have  aspired  to  the  empire 
of  the  sea,  and  to  analyse  maritime  law,  from 
its  first  origin  to  the  present  day.  These  sub- 
jects occupy  the  first  part  of  thi'^  \\ork. 


xxviii         AUTHOR'S  PREFACE. 

XXI.  In  the  second  part,  I  have  treated  of 
the  origin  and  causes  of  maritime  wars,  of 
neutrahty,  and  of  the  duties  of  neutral  and  bel- 
ligerent nations  towards  each  other.  By  ap- 
plying the  principles,  developed  in  the  first 
part,  to  the  law  of  marine  captures  and  recap- 
tures, I  have  formed  a  body  of  elementary  doc- 
trines, founded  on  positive  laws,  and  the  prin-- 
ciples  of  natural  equity,  that  will  serve  for  a 
sure  guide  in  the  decision  of  questions  which 
may  arise  relative  to  navigation  and  commerce, 
either  in  peace  or  war. 

XXII.  The  same  subjects  have  been  already 
discussed  by  me,  in  another  work,  published 
in  1795,  entitled,  Sistema  Universale  dei  prin- 
cipii  del  Diritto  Marittimo  delV  Europa ;  but 
the  limits  prescribed  to  myself,  in  that  work, 
did  not  allow  me  to  investigate  the  several  mat- 
ters to  that  extent  of  which  they  were  suscep- 
tible, and  which  was  necessary,  in  order  to 
reduce  them  into  a  system.  There  is  not, 
therefore,  in  that  performance,  that  clearness 
and  full  explication,  wdiich  I  have  endeavour- 
ed to  introduce  into  the  work  now  offered  to 
the  public,  in  as  complete  a  manner  as  my 
understanding  and  abilities  would  permit. 
May  I  be  fortunate  enough  to  render  my  ef- 
forts useful  to  nations  !  May  I  attain  the 
only  end  I  have  in  view,  the  good  of  my  fel- 
low men  ! 


CONTENTS 

OF  VOLUME  I. 


/I  DVERTISEMENT,  bi/  the  Author,        5 

Translator  s  Preface,  -  -  9 

Authoj^'s  Preface,  -  -  17 


CHAPTER  I. 

Page 

Of  the  Empire  of  the  Sea, 

1 

ART.  I. 

Of  the  High  Sea, 

ibid. 

II. 

Of  the  Ancient  States  zvho  have 

claimed  the  Empire  of  the  Sea, 

24 

Sect.  I. 

Tyre, 

25 

II. 

jEgina,               _             .               _ 

29 

III. 

Crete,         -              -               . 

30 

IV. 

Rhodes, 

31 

V. 

Persia, 

34 

VI. 

Greece,             -              - 

36 

VII. 

Macedoniay 

40 

VIII. 

Egypt, 

42 

IX. 

Carthage, 

48 

X. 

Rome,          -                 -                 - 

54 

ART.  Ill 

.  Of  the  Modern  States  zvho  have  claim 
rd  the  Evipire  of  the  Sea  prior  to 

- 

the  discovery  of  the  Neiv  World,  - 

76 

XXX  CONTENTS. 

Page 

Sect.  I.   Venice,  -  -  16 

II.  Ge?ioa,         -  -  -        83 

III.  Pisa,  -  -  85 

IV.  The  Goths,   Vandals,  Saracens,  and 

Normans,  -  -         90 

V.   The  Cimsades,         -  -  91 

ART.  IV.  Of  the  States  zoho  have  claimed  the 
Empire  of  the  Sea,  since  the  disco- 
very of  America.  -  -  95 
Sect.  I.  Portugal,                 -                 -  94 
II.  Spain,             -                  -              -       103 
III.  Holland,                 -               -               113 
ART.   V.  Parallel  between  England  and  France, 
in  regard  to  their  claims  to  the  Em- 
pire of  the  Sea,                -                118 


CHAPTER  II. 

Of  the  Territorial  Sea,  181 

ART.  I.  Of  the  Empire  of  the  Territorial  Sea,  ibid. 

II.  Of  the  Extent  of  the  Territorial  Sea,  193 

III.  Of  the  opinions  of  Publicists  as  to  the 

extent  of  the  Empire  of  Territorial 

Sea,  -  -  -  208 


CHAPTER  III. 

Of  the  Effects  of  the  Empire 
OF  THE  Territorial  Sea,  223 

ART.  I.  Of  Property  in  Territorial  Seas  and 

of  their  dependencies,  ibid. 

II.  Of  Straits,  and  the  duties  imposed  on 

their  passage,  -  226 


CONTENTS.  xxxi 

Page 

III.  Of  Ports,  Bays,  and  Gulphs,  233 

IV.  Of  other  Maritime  Duties,  and  An- 

chorage Duty,            -           -  235 

V.  Of  the  pressing  of  Ships,  238 

VI.  Of  Embargoes,  or  the  detention  of 

friendly  ships,                  -  242 

VII,  Of  the  internal  Jurisdiction  over  the 

Territorial  Seas,         -         -  244 

VIII.  Of  Commerce  and  Fishing,  247 


CHAPTER  IV. 

Of  the  Origin  and  Progress  of 
Maritime  Law,  -  253 

ART.  I.  Of  Commerce  and  Navigation,    as 

sources  of  maritime  legislatioUy       ibid. 
II.  Of  the  Rhodian  laws,  -  265 

III.  Of  the  maritime  laws  of  the  Romajis, 

contained  in  the  Digest,  -         296 

IV.  Of  the  maritime  laws  contained  in 

the  Theodosian  Code,         -  307 
V.  Of  the  maritime  laws  contained  in 

the  Code  of  Justinian,  -  318 

VI.  Of  the  maritime  laivs  contained  in 

the  Basilica,  -  -  321 

VII.  Of  the  maritime  laws  promidgated 

by  the  emperor  Leon,  -  324 

VIII.  Of  the  Laws  of   the  Consolat(\  del 

Mare,  -  -  326 

IX.  Of  the  Amalfitan  Laws,  -  372 

X.  Of  the  Laws  of  Oleron,  '311 

XI.  Of  the  Laws  of  Wisbuy,  -  381 


Xxxii 

CONTENTS. 

Fagt 

XII. 

Of  the  Laws  of  Marseilles, 

385 

XIII. 

Of  the  Laws  of  the  Ha?ise-Totvfis, 

388 

XIV. 

Of  the  Lazes  of  France, 

391 

XV. 

Of  the  Laws  of  Englandy 

396 

XVI. 

Of  the  Laws  of  Hollandy 

402 

XVII. 

Of  the  Laivs  of  Spain, 

404 

XVIII. 

Of  the  Laws  of  Portugal, 

406 

XIX. 

Of  the  Laws  of  Jntzverp, 

ibid. 

XX. 

Of  the  Laws  of  Sweden, 

407 

XXI. 

Of  the  Laws  of  Denmark, 

408 

XXII. 

Of  the  Laws  of  Russia, 

409 

XXIII. 

Of  the  Laws  of  other  northern  States 

of  Euj'ope, 

413 

XXIV. 

Of  the  Ottoman  Laxvs, 

414 

XXV. 

Of  the  Laws  of  Naples, 

415 

XXVI. 

Of  the  Laws  of  Venice, 

416 

XXVII. 

Of  the  Lazvs  of  Tuscany, 

417 

XXVIII 

.  Of  the  Lazvs  of  Gejioa, 

ibid. 

XXIX. 

Of  the  Lazvs  of  Sardinia, 

418 

THE 

MARITIME  LAW 

OF  EUROPE, 

PART  FIRST. 

Of  the  Sea,  and  of  the  Rights  ivhich  ma}j  he  exercised 
on  that  Element. 

CHAPTER  I. 

OF  THE  EMPIRE  OF  THE  SEA. 

ART.  L 

Of  the  High  Sea. 

§  1.  1  HERE  is  not  a  nobler  object,  nor  one  more 
capable  of  arresting  the  attention  of  man,  than  a  ship 
under  full  sail,  pursuing  her  peaceful  course  over  the 
vast  expanse  of  ocean.  At  the  same  time,  nothing 
can  more  excite  apprehension  and  wonder,  than  the 
sight  of  a  ship  attacked  by  tempest,  contending 
against  the  impetuosity  of  winds  and  the  violence  of 
waves  ;  yet  surmounting,  by  unshaken  courage  and 
skilful  manoeuvres,  all  the  obstacles  which  angry  na- 
ture had  opposed  to  her  progress :  escaping  at  last 
from  every  danger,  the  eye  is  gratified  with  seeing 
her  enter  triumphantly  into  port.  Antiquity,  which 
has  enveloped  the  origin  of  navigation  in  darkness 
and  fable,  can  throw  no  light  on  a  period  so  very  in- 

Voi.  1.  B 


2  THE  MARITIME  LAAV        Part  1. 

Origin  of  navigation  obscure. — First  view  of  the  sea. 

teresting  to  naval  history.  The  expedients  that  na- 
ture furnishes  to  man  at  every  step,  and  the  progress 
of  the  human  mind,  which,  in  every  age,  has  been 
able  to  draw  forth  the  secrets  contained  in  her  bosom, 
will  supply  conjectures  to  guide  us  in  our  researches 
on  this  subject.  They  will  lead  to  satisfactory  conclu- 
sions, in  support  of  the  fundamental  right,  equally 
possessed  by  all  men,  to  maritime  navigation,  and  to 
a  common  participation  of  the  advantages  which  the 
free  exertions  of  their  faculties  may  enable  them  to 
enjoy.* 

2.  The  roaring:  of  the  sur^e  must  have  been  heard 
'by  the  first  inhabitants  of  the  earth,  with  a  mingled 
sensation  of  admiration  and  dread.  They  must  have 
approached  the  sea  with  distrust  and  with  awe.  In 
proportion  as  the  waves  became  tranquil,  their  ter- 
rors would  subside,  till,  at  length,  amidst  numberless 
dangers,  and,  at  the  risque  of  a  watery  tomb,  they 
ventured  to  brave  an  element,  terrible  only  at  inter- 
vals, but  presenting  in  its  wide  extent,  and  capacious 
bosom,  vast  resources,  new  productions  and  new  en- 
joyments.(l) 

*  The  invention  of  the  means  of  navigation  is  given  to  many  dis- 
tinguished characters  in  antiquity  :  popular  opinion  refers  it  to  Mi- 
nerva,  who  invented  so  many  other  things.  The  idea  of  the  poet 
Gessner,  who,  in  his  First  Navigator,  ascribes  it  to  Venus,  is  not  the 
least  pleasing.  This  fiction  has  been  happily  introduced  into  the 
poem  of  Esmenard,  entitled.  La  Navigation,  Chant  I.  published  at 
Paris,  1805 T. 

(1)  The  history  of  every  age  proves,  that  when  men  find  it  diffi- 
cult to  procure  the  necessaries  and  comforts  of  life,  nature  offers 


Chap.  I.  OF  EUROPE. 


Origin  of  tlie  art  of  navigation. 


3.  The  first  who  exposed  himself  to  the  fury  of  the 
sea,  and  the  endless  inconstancy  of  its  waves,  of 
whom  Horace  elegantly  says,  robiiretas  triplex  circa 
pectus  €rat,[2)  must  have  been  impelled  by  want  and 
cupidity. (3)  Becoming,  at  length,  familiarised  with 
the  rapidity  of  currents,  the  violence  of  winds  and 
storms,  the  temerity  of  man  knew  no  bounds.  Ca- 
noes, made  of  the  trunk  of  a  tree,  observed  by  chance 
floating  on  the  waves,  known  among  the  ancients, 
under  the  name  of  Mono.vylum,{4')  must  have  been 
the  first  means  of  crossing  rivers,  and  of  passing  from 

tijem  abundant  resources  in  the  productions  of  lakes,  rivers,  and 
seas.  It  may  be  said  also,  that  the  inhabitants  of  warm  climates, 
enjoy  a  species  of  luxury  in  their  pursuits  on  this  element,  whose 
agreeable  coolness  is  so  refreshing,  under  the  influence  of  a  burning 
sun.  It  is  common  to  see,  says  Taylor,  in  his  Letters  on  India, 
a  savage  islander,  half  plunged  in  water,  his  head  sheltered  with 
large  leaves,  and  almost  without  any  other  covering,  encounter 
alone  the  dangers  of  the  ocean,  in  search  of  that  sustenance  which 
the  earth  refuses  to  yield, 

(2)  Jill  rohur  et  cvs  triplex 

Circa  pectus  crat,  qui  fragilem  truci 

Commisit  pelago  ratem 

Primus,  nee  timuit  pr(Ecipite?n  Africum 

Decevtantem  Aquilonibus, 

Nee  tristes  Hj/adas,  nee  rabiem  Noti. 

Horat.  lib.  i.  Od.  3. 

(3)  Navigandi  studium  et  cursus  viariiimos  in  vitam  introdttxit 
atarilia;  nam  ut  naxigare  vellent,  ad  hoc  adegit  homines  cupiditas 
adquirendi  plura.  Lybanius  in  progym. 

(+)  Plato  de  legihus,  lib.  12.  Pliny  Nat.  Hist.Xxh.  7,  c.  56.  Isidor. 
Orig.  lib.  19,  c,  L 


4  THE  MARITIME  LAW        Part  J. 

Progress  of  the  art  of  navigation. 

one  island  to  another.(5)  This  first  essay  naturally  led 
to  a  further  imitation  of  this  sort  of  natural  boat, 
and  to  the  discovery  of  the  art  of  constructing  others 
of  different  pieces  of  wood,  fastened  together  with 
strings,  made  of  skins,  and  with  pegs,  and  arranged  in 
the  form  of  rafts,  sufficiently  solid  and  capacious 
for  the  purpose  of  transportation. (6)  Emboldened  by 

(5)  Tunc  alnos prbnumjiuvii  sensere  cavatas  : 

Virgil.  Georgic.  lib.  1,  v.  36. 

It  appears  that  the  ancients  made  great  use  of  canoes,  constructed 
of  the  trunks  of  single  trees.  Sanchoniathon  says,  that  Ousous,  one 
of  the  first  heroes  of  Phoenicia,  took  a  tree,  half  burnt,  cut  off  its 
branches,  and  was  the  first  who  dared  to  expose  himself  upon  the 
water  :  Arbore  cujus  ante  ramos  amputarerat,  navigii  loco  usus  pri- 
mus sese  ausus  man  committer e.  Vide  Euseb.  inpreparat.  Evangel. 
lib.  1,  p.  3.  A.  Vitruvius,  de  origine  art.  lib.  2,  cap.  5.  who  endea- 
vours to  ascend  to  the  first  principles  of  the  arts,  attributes  the 
birth  of  navigation  to  the  fact  mentioned  by  Sanchoniathon. 

(6)  It  appeared  highly  probable,  that  its  structure  might  be  dis- 
covered in  the  raft  of  Ulysses,  mentioned  by  Homer  in  the  Odyssey, 
lib.  5,  V.  2+4.  and,  in  fact,  it  is  there  described  in  tlie  most  striking 
manner.  Speaking  oi  the  raft  made  by  Ulysses  in  the  island  ot  Ca- 
lypso, he  says, 

Trees  on  trees  o'erthrown 

Fall  crackling  round  him,  and  the  forests  groan  : 

Sudden,  full  twenty  on  the  plain  are  itrowed, 

And  lopp'd  and  lighten'd  of  their  branchy  load. 

At  equal  angles  these  disposed  to  join. 

He  smoothed  and  squar'd  'em  by  the  rule  and  line. 

(The  wimbles  for  the  work  Calypso  found) 

With  those  he  pierc'd  them,  and  with  clinchers  bound. 

Long  and  capacious  as  a  shipwright  forms 

Some  bark's  broad  bottom  to  outride  the  storms. 


Chap.  I.  OF  EUROPE. 


Progi'css  of  tlie  art  of  navigation. 


experience,  the  simple  ideas  acquired  of  Boating  bo- 
dies, whose  specific  gravity  was  less  than  that  of  wa- 
ter,(7)  having  enlarged  the  understanding  of  men, 
they  were  necessarily  led  to  the  construction  of  larger 
vessels ;  rafts  were  converted  into  gallies,  with  many 
ranks  of  oars, (8)  and  at  last  they  ventured  to  trust 
themselves  to  the  open  sea.    These  galHes,  in  the 
progress  of  time,  were  transformed  into  vessels  with 
lofty  sides ;  in  them,  men  braved  the  ocean,  and 
from  peaceful  and  timid  fishermen,  they  linally  be- 
So  large  he  built  the  raft ;  then  ribb'd  it  strong 
From  space  to  space,  and  nail'd  the  planks  along  ; 
These  torn\*d  the  sides  :  the  deck  he  fashion'd  lust. 
Then  o'er  the  vessel  rais'd  the  taper  mast. 
With  crossing  sail-yards  dancing  in  the  wind. 
And  to  the  helm  the  guiding  rudder  join'd. 
Thy  loom,  Ca!)  pso  !  for  the  future  sails 
Supply'd  the  cloth,  capacious  of  the  gales. 
With  stays  and  cordage  last  he  rigg'd  the  ship. 
And  roll'd  on  levers,  launch *d  her  to  the  deep.* 

Pope's  Translation. 

(7)  Such  is  tlie  nature  of  pine,  fir,  and  alder,  which  the  ancients 
employed  in  the  construction  of  their  marine. 

(8)  The  Greeks  gave  to  these  gallies  the  name  of  Decateperes, 
Decapenterts,  and  Dtcaexeres,  that  is,  having  fourteen,  fifteen,  or 
sixteen  ranks  of  rowers  on  a  side.  See  the  excellent  work  of  M. 
Le  Roi,  on  the  marine  of  the  ancients. 


*  This  ruft,  according  to  the  poet,  was  finlslicd  in/our  tkjs,  a  fact,  which, 
tliough  somc'.vhiit  hnprobablc,  proves  Uh  sscs  to  Lave  bctn  no  less  rcmaik- 
able  for  his  skill  and  industJ>-  .is  ;c  ihipwriglu,  tl'.an  for  Ids  politlciJ  wl.- 
uor.\ T. 


6  THE  MARITIME  LAW        Part  /. 

The  sea  useful  for  navigation  and  fishing. 

came  audacious  pirates,   and  adventurous  naviga- 
tors.(9) 

4.  In  whatever  way  the  inhabitants  of  the  earth 
became  familiarised  with  this  terrible  element,  it  is 
certain,  that  from  that  time,  the  high  sea  presented 
two  great  advantages,  navigation  and  fishing,  while 
its  coasts  afforded  various  productions  and  different 
modes  of  industry,  for  the  supply  of  their  wants,  and 
a  secure  asylum  in  the  voyages  undertaken  on  its 
restless  surface. 

5.  Every  nation  situated  on  the  borders  of  the 
sea,  must  have  soon  perceived  that  it  had  an  equal 
right  to  navigation  and  fishing,  and  to  a  common 
participation  of  the  advantages,  which  might  result 
from  these  pursuits.  At  that  period,  no  limits  would 
be  assigned  to  the  exercise  of  this  right,  but  such  as 
resulted  from  their  situation,  their  wants,  or  their  in- 
dustry, or  were  fixed  by  nature. 

6.  The  use  of  the  sea  is  innocent  in  itself,  and 
injurious  to  no  onej  because,  it  is  sufficient  for 
the  wants  of  all,  and  nature  has  not  given  to  men 
the  right  of  appropriating  things  inexhaustible  by 

(9)  Quintilian,  lib.  1 9,  ch.  2.  considering  rafts  as  first  made  use  of 
for  navigation,  says,  "  If  tliose  who  came  after  the  ancients,  had 
done  nothing  more  than  to  imitate  them,  we  should  still  navigate  on 
rafts  :  Si  nemo  plus  efficiet  eo  quern  sequebatur,  adhuc  ratibus  navi- 
garemus." 


Vhap.  I.  OF  EUROPE. 


The  use  of  the  sea  is  common  to  all  mankind. 

use,  of  perpetual  duration,  and  sufficient  for  all.  As 
each  one  may  find,  in  a  common  participation,  enough 
to  satisfy  his  wants,  to  seize  on  such  things,  and  ex- 
clude others  from  their  use,  would  be  to  deprive  them, 
without  reason,  of  the  benefits  conferred  upon  all 
mankind,  by  the  great  author  of  nature. 

7.  So  fertile  in  resources,  so  abundant  in  pretexts, 
are  avarice  and  ambition,  when  supported  by  armed 
power, that  this  fundamental  truth,  on  which  rests  the 
plan  of  creation,  has  not  been  sufficient  to  fix  the 
opinions  of  men,  to  lead  their  minds  to  favourable  con- 
clusions, and  to  such  as  are  agreeable  to  the  institu- 
tion of  the  Creator.  This  truth  acquires  additional 
force,  from  the  consideration  of  the  impossibility  of 
taking  possession  of  the  high  seas.  Indeed,  from  the 
moment  a  thing  becomes  so  abundant,  that  whatever 
quantity  may  be  taken  from  it  by  one,  others  may 
still  have  as  much  as  they  desire,  it  necessarily  re- 
sults that,  as  each  may  appropriate  to  himself  the 
quantity  he  wants,  all  the  rest  may  do  the  same,  with- 
out injury,  and  without  infringing  the  rights  of  any 
other  person. (10) 

(10)  Hinc  jactum  ut  stadin  ijuiaqiie  hominum  ad  suos  usus  ar- 
ripere  posset  quod  vcUet,  et  qua  consumi  pottiant  consumers ;  ac 
talis  usus  universalis  juris  erat  tunc  vice  proprietalis.  Nam  quodquis- 
que  sicarripuerat,  id  ei  eripere  alter  nisi  per  injustitiam  nonpoterat. 
Grotiusdejure  belli  acpacis,  lib.  2,  di.  2,  §2.  In  this  sense,  we  are 
to  iniderstand  the  words  of  Cicero,  de  fimbus.  3.  Theatrum  cum 
commune  sit  recte  tamen  did  potest  ejus  esse  cum  locum  queni  quisque 
•vcuparit.    The  same  principle  is  to  be  found  in  Seneca,  de  Ben*-- 


8  THE  MARITIME  LAW        Part  L 

Property  in  die  sea  distinguished  from  that  in  land. 

8.  The  reasons  on  which  the  right  of  property  in 
land  is  founded,  are  not  appHcable  to  property  in  the 
sea.  As  the  earth,  without  cultivation,  no  longer  fur- 
nished all  the  productions  necessary  or  useful  to  the 
human  race,  it  became  requisite  to  introduce  the  right 
of  property,  that  each  individual  might  apply  with 
greater  assiduity  and  success,  to  the  cultivation  of  the 
part  which  had  fallen  to  his  share,  and  to  multiply 
by  his  labour,  the  various  productions  essentia]  to  life, 
and  useful  to  the  great  body  of  society.  For  this  rea- 
>Jon,  natural  law,  directed  by  civil  laws,  has  sanction- 
ed those  rights  of  domain  and  property,  which 
have  put  an  end  to  the  primitive  community  of  goods. 

9.  The  sea  was  of  itself,  navigable,  anterior  to  any 
labour  or  industry  of  man.  It  requires  no  greater 
force  of  wind  to  carry  forward  on  the  ocean  all  the 
fleets  in  the  world,  than  what  is  sufficient  to  propel 
a  single  vessel.  When  one  ship  has  passed,  the  way 
remains  unbroken  and  not  less  convenient  for  those 
which  follow  after ;  so  that  any  number  of  vessels 
may  set  sail  at  the  same  time,  without  impeding  the 
course  of  each  other.* 

nciis,  lib.  7,  c.  12.    Equestria  omnium  Romanorum  sunt ;  in  illista- 
men  locus  mens  fit  quern  occupavi. 

*  Puffendorf  de  jure  naturse  et  Gentium,  lib.  4,  cap.  5,  §9.  Ui 
is  navigationi  sit  idoneus  nulla  quantum  ad  ipsum  inari  hominum  ope- 
ra et  industria  opus  est.  Eodem  labore  renti  quicquid  est  ubiqiie  «a- 
viumprodeunt  iter.  Nan  deterius patet  tibi  incontinentem  alterum  iter, 
licet  cceteri  eandem  viam  usurpent.  The  whole  of  the  fifth  chapter 
of  Puffendorf,  on  this  subject,  deserves  to  be  read..,...T. 


Chap.  I.  OF  EUROPE. 


No  nation  has  an  exclusive  right  to  the  use  of  the  sea. 


10.  If,  at  the  present  day,  a  perfect  democracy  were 
possible,  the  sea  alone  could  become  the  theatre  of 
its  existence.  Every  nation  has  an  equal  right  to 
launch  it  fleets  on  that  element ;  there,  every  man  has 
a  right  to  navigate,  to  transport  the  productions  of  his 
soil  or  the  fruits  of  his  industry,  and  to  plough  the  sur- 
face of  the  deep,from  pole  to  pole.  Absolute  democracy, 
or,  to  speak  more  correctly,  a  perfect  equality  of  rights 
on  the  sea,  is  the  natural  state  of  maritime  nations. 
Whoever  seeks  to  gain  an  exclusive  power  there,  t  y 
attempts  to  erect  an  absolute  monarchy,  an  organ-  •^ 
ised  tyranny,  an  odious  dcspotism.(l  1)  Maritime  na- 
vigation, being  the  free  and  permanent  exercise  of  the 
natural  and  imprescriptible  right  of  the  nations  of  the 
world,  must  be  common  to  all.  Every  maritime  power 
ought  to  be  pacific  from  principle,  and  tranquil  from 
necessity.  All  those  powers  who  have  claimed  the 
exclusive  empire  of  the  sea,  have  been  warriors  from 
necessity,  jealous  from  pride,  tyrannical  from  system, 
grasping  from  interest,  and  restless  from  avarice. 
Europe  enjoyed  tranquillity,  when  navigation,  pro- 
tected by  the  law  of  nations,  was  peaceably  carried 
on  by  all.  It  has  been  put  into  commotion,  and  in- 
undated with  blood,  since  the  Carthaginians,  the 
Romans,  the  Venitians,  Charles  V.  Holland,  and 
England,  have  aspired  to  the  empire  of  the  sea.* 


(11)  See  an  excellent  work  of  M.  Barrere  on  this  subject,  en- 
titled. La  Lihcrte  des  Mers. 

*  The  Intelligent  reader  will  ask,  at  what  period  has  navigation 
enjoyed  this  undisturbed  tranquillity  ?  And  has  not  the  ambition  of 

Vol.  I.  C 


y" 


to  THE  MARITIME  LAW        Part  L 

, ,  c 
The  exclusive  empire  of  the  sea  belongs  to  no  nation. 

1 1 .  A  despotic  power  over  the  sea,  which  belongs 
equally  to  every  nation,  would  fetter  commerce,  and 
restrain  the  liberty  of  all  mankind.  It  would  inter- 
dict nations  from  the  means  of  communicating  with 
each  other.  To  subject  the  winds  and  waves  to  the 
dominion  of  an  exclusive  flag,  would  be  committing 
adultery  with,*  rather  than  espousing  the  sea  j  it 
would  be  seeking  an  absurd  end,  by  means  not  less 
devoid  of  reason  ;  in  a  word,  it  would  be  the  delirium 
of  a  nation,  mad  with  ambition,  whom  it  would  be 
necessary  to  enchain.  The  different  possessors  in  the 
same  tract  of  country,  have  an  equal  right  to  the 
maintenance  of  order,  for  the  purpose  of  securing  the 
free  exercise  of  their  respective  rights  within  such 
territory.  If  that  territory  is  common  and  indivisible, 
the  right  of  each  individual  is  founded  on  the  com- 
mon right.  The  sea,  by  its  extent  and  real  indivisi- 
bility, is  intended  by  Providence  to  be  common  to 
the  different  nations  of  the  world,  to  contribute  to  the 
wants,  the  commerce,  the  well-being,  and  the  pros- 
perity of  all  who  have  the  means  of  navigating  its  sur- 
face. With  what  right,  then,  will  any  one  pretend 
to  give  laws  to  the  sea,  and  to  fetter  the  commerce 
of  nations? 


France,  of  Austria,  ot  Prussia,  also  disturbed  the  repose  of  Europe, 
and  inundated  the  fairest  portions  of  that  continent  with  blood  ^ 
The  dire  effects  of  ambition  are  the  same,  whether  the  ocean  or 
the  land  be  the  theatre  of  its  influence T. 

*  Ce  serait  adulterer  les  mers.  See  article,  Venice,  post T. 


Chap.L  OF  EUROPE.  11 

'■  ■  ■■.... 

The  injustice  of  an  exclusive  commerce. 

12.  The  sea  belongs  to  no  one  ;  it  is  the  property  of  " 
all  men  ;  all  have  the  same  equal  right  to  its  use 
as  to  the  air  they  breathe,  and  to  the  sun  that  warms 
them.    Seas  are  the  great  highways,  traced  by  nature 
between  the  different  parts  of  the  world,  to  facilitate 
and   expedite  communication   between  the  various 
nations  who  inhabit  it.    If  a  nation  seizes  on  these 
highways,  if  it  arrogates  to  itself  the  exclusive  privilege 
of  traversing  them  without  opposition,  and  repels,  by 
the  fear  of  being  plundered,  all  those  who  wish  to  make 
the  same  use  of  them,  it  is  no  better  than  a  nation  of 
robbers.     The  liberty  of  the  sea   is  interesting,  not 
only  to  nations  who  carry  on  commerce  in  their  own 
ships,  but  is  beneficial  to  all  mankind.    All  civilized  l 
countries,  at  the  present  day,  have  nearly  tlie  same  hab-  \ 
its,  the  same  wants,  and  require  the  same  articles  of 
consumption.  If  a  nation  usurps  the  whole  commerce, 
it  destroys  all  competition,  and  fixes,  at  its  pleasure, 
the  price  of  every  commodity.    By  its  arbitrary  im- 
posts it  draws  to  itself  the  riches  of  every  state ;  the 
colossus  of  its  own  opulence  is  raised  on  the  common 
distress  and  ruin.    Such  a  nation  becomes  the  plun- 
derer and  the  enemy  of  the  human  race. 

13.  Can  any  thing  be  more  just,  than  for  the  whole 
world  to  rise  up  against  a  nation  that  wishes  to  pre- 
vent others  from  sharing  those  common  advantages, 
which,  by  the  laws  of  nature  and  ot  nations,  belong 
equally  to  all  ?  And  why  may  not  the  same  events, 
the  account  of  which  we  read  in  ancient  history, 
again  happen  at  the  present  day  ?  AVe  behold  the  an- 


12  THE  MARITIME  LAW        PartL 

All  nations  should  unite  against  the  tjTant  of  the  sea. 

cient  nations  uniting  their  forces,  to  avenge  an  out- 
rage committed  against  the  laws  of  nature  and  of  na- 
tions ;  for,  to  claim  the  exclusive  dominion  of  the 
sea,  is  an  outrasre  against  both.  All  should  combine 
their  efforts  against  the  usurper.  A  nation,  in  a  con- 
dition to  punish  a  maritime  power  that  attempts  to 
domineer  over  the  sea,  and  who  endeavours  by  vi- 
gorous attacks  to  restrain  such  power  within  just 
limits,  deserves  well  of  mankind;  since  the  necessity  of 
restoring  to  every  nation  its  rights,  is  the  motive 
which  impels  it  to  action,  since  its  power  rests  on  the 
general  cause  which  it  defends,  since  its  commission 
is  derived  from  nature,  and  its  right  from  the  absolute 
wants  of  the  human  race.  Those  nations  whose  situ- 
ation does  not  allow  them  actively  to  co-operate,  will., 
at  least,  indulge  good  wishes  towards  another  so  ge- 
nerous as  to  attack,  even  in  their  harbours,  the  ty- 
rants of  the  ocean.  It  was  thus,  in  former  times,  that 
Cimon  knew  how  to  expel  the  Persians  from  the  ma- 
ritime coasts,  and  to  subject  them  to  such  terms  as  he 
thought  proper  to  impose,  after  the  battle  of  Salamis. 
It  was  thus,  that  the  people  of  Argos  united  with  the 
Athenians  to  prevent  the  Spartans,  not  only  from  na- 
vigating the  sea,  but  even  to  deprive  them  of  the 
right  of  passage.  It  was  thus  that  the  power  of  the 
Egyptians  was  subjected  to  the  pleasure  of  the 
Greeks,  and  they  were  constrained  to  sue  for  the 
liberty,  granted  them  by  treaty,  of  sending,  each  year, 
two  vessels  beyond  the  Bosphorus.* 

*  In  the  above  paragraph,  and  in  some  others,  to  be  found  in  the 
first  chapter  of  the  new  edition  of  his  work,  our  author  evidently 


Chap.  L  OF  EUROPE.  13 


Each  ought  to  be  content  with  his  own  pi-opcrty. 

14.  The  law  of  nature  enjoins  us  to  be  content 
with  the  acquisition  of  property  sufficient  for  our  own 
support,  and  of  those  who  are  dependent  on  our  care. 
If  reason  and  experience  admonish  us  to  think  of 
futurity,  this  foresight  should  not  lead  us  to  indulge 
ambition  and  an  unjust  cupidity,  nor  to  prevent 
others  from  providing  equally  for  their  own  wants. 
The  liberty  of  navigation  and  of  fishing  is  derived 
from  natural  law,  and  the  law  of  nations,  as  well  as 


writes  under  a  bias,  and  with  a  particular  vitw  to  existing  circum- 
stances. 

Themistocles  commanded  the  Grecian  fleet  at  the  battle  of  Sa- 
lamis.  An  enlightened  advocate  ot  the  rights  of  mankind,  would 
hard!)'  recommend  the  conduct  of  the  Athenians,  as  a  maritime 
power,  to  the  imitation  of  nations  at  the  present  day.  The  estab- 
lishment of  the  naval  power  of  Athens  was,  no  doubt,  the  principal 
means  of  her  salvation  from  Persian  tyranny.  Her  efforts  to  main- 
tain her  liberty  and  independence  against  foreign  invasion,  are  de- 
ser\  ing  of  our  admiration.  But  in  her  conduct  towards  the  Grecian 
states  and  cities,  we  discern  nothing  worthy  of  praise.  In 
the  instances  cited  by  our  author,  she  transcended  the  bounds  of 
moderation  and  justice,  and  violated  the  principles  on  which  the 
freedom  of  navigation  and  commerce  is  founded.  In  fact,  the  Athe- 
nians no  sooner  felt  tlie  greatness  of  their  maritime  power,  than  they 
became  intoxicated  by  it.  It  was  converted  into  the  instrument  of 
unjust  ambition  and  boundless  rapacity.  Their  naval  commanders, 
dispersing  themselves  over  the  sea,  laid  waste  and  plundered  de- 
fenceless towns,  and  brought  home  liieir  spoils  in  triumph  to  Alliens. 
Friends  and  foes,  allies  and  neutrals,  were  equally  a  prey  to  their 
lawless  depredations.  Themistocles  liimself)  once  proposed,  in  an 
assembly  of  the  people,  to  burn  the  fleet  of  their  allies,  then  lying 
without  suspicion  in  the  port  of  Pagasae,  and  thereby  to  render 
themselves  masters  of  Greece.  The  opinion  of  Aristides,  and  some 
sense  of  justice  in  the  people,  alone  prevented  its  adoption -T. 


14  THE  MARITIME  LAW        Part  I 

The  higli  sea  is  as  free  as  light  and  air. 

from  the  civil  law.  For  these  reasons,  the  high  sea 
ought  to  remain  as  common  to  the  human  race  as  air 
and  light.(12)  The  use  of  those  elements,  unques- 
tionably, can  never  belong  to  any  one  nation,  to  the 
exclusion  of  others.(13) 

15.  From  these  principles,  it  follows,  that  the  right 
of  prior  occupancy  cannot  give  to  a  nation  the  abso- 
lute empire  of  the  high  sea,  and  for  the  reason  alrea- 
dy mentioned,  that  this  element  is  not  susceptible  of 

(12)  Et  quideni  naturalijure  omnium  communia  sunt  ilia,  aer  aqua 

profluens  et  mare quia  non  sunt  jure 

gentium  siciit  est  mare.  Dig.  lib.  1.  tit.  ix.  I.  2,  4-.*  Mari  quod  natura 
otnnihus  patet  servitus  imponi  privata  lege  non  potest.  Dig.  lib.  8. 
tit.  iv.  I.  13.  Maris  communcm  esse  usum  omnibus  ut  a'cris. 

(13)  Instit.  lib.  ll.§2.eM0.  Dig.  lib.  47.  tit.  10.  1.13.  §7. 
Id.  lib.  43.  tit  viii.  I.  2.  §9. — An  elegant  passage  of  Petronius,  ch. 
10,  may  be  here  cited  :  2uid  autem  non  commune  est  quod  natura 
optimum  fecit  ?  Sol  omnibus  lucet.  Luna  innumerabilibus  coniitata 
sideribus  ciiam  feras  ducit  ad  pabulum.  2uid  aquis  did  formosius 
potest?  In  publico  tamenmanant.  Vid.  Noodt.  probat.  jurisjiib.  1. 
cap.  7.    So  Ovid,  Metamorphose  6.  1.  349 — 

2uid  prohibetis  aquas  ?  Usus  communis  aquarum  est, 
Nee  solem  proprium  natura,  nee  dera  fecit. 
Nee  ienues  undas.    Ad  ptiblica  munera  teni. 
And  Virgil.  ^Eneid.  7. 1.  229. 

littusque  rogamus 

Innocuum,  et  cunctis  undamque,  auramque  palentcm. 


*  Azuni  follows  the  very  Inconvenient  and  pedantic  mode  of  quoting  the 
civil  laws,  which  prevails  among  the  ^vriters  of  the  other  continent,  referring 
only  to  \ht  number  of  tlie  law,  and  giving  the  first  words  of  its  title.  By 
searching  the  general  index,  in  some  editions,  the  book  and  title  may  be  found, 
but  to  save  the  reada-  that  trouble,  a  different  reference  is  substituted T 


Chap.  I.  OF  EUROPE.  15 

A  nation  may  renounce  its  maritime  rights. 

individual  appropriation.  If  it  were  otherwise,  the 
grand  Seignior,  in  quality  of  sovereign  of  Phoenicia, 
might  claim  to  be  the  proprietor  of  every  sea,  as 
having  succeeded  to  the  right  of  the  Phoenicians, 
who  were  the  first  navigators  with  whom  history  has 
made  us  acquainted. 

16.  In  order  that  the  empire  of  the  sea  may  belong 
to  any  particular  nation,  it  is  necessary  that  all  others 
should  renounce  the  rights  of  navigation  and  fish- 
ing, which  nature  has  conferred  equally  on  all  man- 
kind. By  this  means,  only,  by  the  general  consent 
and  agreement  of  all  sovereign  and  independent  so- 
cieties, can  the  sea  become  the  apanage,  or,  if  we 
may  be  allowed  the  expression,  the  dower  of  such  for- 
tunate nation.  In  this  manner,  mankind  may  be  sup- 
posed free  to  renounce  the  liberty  of  the  sea,  or  to 
cede  it  to  a  single  nation,  who  may  give  an  equivalent 
for  the  possession,  or  leave  it  in  its  ordinary  state, 
so  that  it  may  be  enjoyed  equally  by  all,  as  it  is,  in 
fact,  at  the  present  day. 

17.  In  the  first  case,  the  empire  of  the  sea  would, 
undoubtedly,  be  in  the  hands  of  a  single  nation,  to  the 
exclusion  of  every  other  ;  but  in  consequence  only  of 
an  agreement  or  universal  compact  of  the  human 
race,  and  not  by  force  of  natural  law.  Other  nations 
may,  in  like  manner,  divest  themselves  of  the  free 
exercise  of  the  rights  of  navigation  and  fishing,  of 
which  the  one  in  possession  will  become  the  abso- 
lute master.     But  as  such  a  compact  never  has  been. 


It5  THE  MARITIME  lAW        Part  I. 


Natural  law  does  not  permit  a  transfer  of  the  sea. 

and  never  will  be  made,(14)  we  must  conclude, 
that  such  an  exclusive  right,  as  is  here  spoken  of, 
exists  only  in  the  region  of  possibilities,  and  that,  con- 
sequently, the  sea  must  remain,  as  in  the  second  case, 
free,  and  for  the  common  use  of  all  nations. 

18.  A  nation,  it  is  said,  according  to  Montesquieu, 
may  cede  the  sea  to  another y  in  the  same  manner  as  it 
has  ceded  land.  If  this  maxim,  laid  down  by  a  great 
writer  on  public  law,  were  true,  and  conformable  to 
principles  of  natural  law,  the  treaty  which  terminat- 
ed the  first  Punic  war  would  cease  to  be  the  disgrace 
of  Rome  :  we  could  no  longer  blame  the  insulting 
pride  of  Carthage.  Those  two  republics  divided 
universal  empire  between  them,  while  an  oppressed 
world  stupidly  gazed  at  the  progress  of  their  power. 
This  act  of  political  violence  exercised  against  the 
rights  of  nations,  has  deceived  Montesquieu,  whose 
genius  was  often  led  astray  by  historical  facts.(15) 

(14)  It  has  been  often  repeated,  that  the  right  of  the  strongest 
at  all  times,  gives  the  sovereignity  of  the  sea.  No  other  reason  can 
be  alleged  in  support  of  this  claim,  until  we  can  produce  either 
a  formal  renunciation  by  other  powers  of  their  sacred  and  unalien- 
able rights,  or  a  clause  in  the  will  of  Adam,  by  which  he  bequeaths 
to  the  power  arrogating  that  sovereignity,  the  fluid  part  of  the 
globe,  to  the  prejudice  of  the  other  children  of  this  common  fathei: 
of  the  human  race. 

(13)  See  Barrere,  in  his  Essay  de  la  liberie  des  mers,  torn.  li  in 
which  he  says,  "  If  any  nation  can  cede  the  empire  of  tfie  sea,  an- 
other nation  may  conquer  it ;  the  force  of  the  one  would  then  bt 
as  legitimate  as  the  injustice  of  the  other.'* 


Chap.  I.  OF  EUROPE.  17 


One  nation  has  no  right  to  prohibit  another  from  tlie  use  of  the  sea. 

19.  When  one  nation,  under  the  pretext  of  an  ex- 
clusive commerce,  prohibited  others  from  navi- 
gating a  certain  part  of  the  sea,  or  from  approach- 
ing certain  coasts;  such  prohibition  was  regarded 
by  them,  as  the  offspring  of  vanity,  originating 
from  the  abuse  of  momentary  power,  rather  than 
from  deliberate  reason,  or  any  right  founded  upon 
principles  of  universal  justice.  In  truth,  it  must 
be  considered  as  an  infraction  of  the  social  compact, 
and  a  manifest  violation  of  the  most  sacred  rights  of 
Immanity.  For  this  reason,  such  an  exclusive  claim 
has  been  disregarded,  or  has  become  the  source  of 
enmity,  and  the  just  cause  of  war.  Thucidydes(l6) 
gives  us,  on  this  subject,  the  example  of  the  Atheni- 
ans and  Megareans ;  Sigonius,(17)  that  of  the  Bo- 
lognese  and  Venetians,  and  Francis  Victoria,(18) 
that  of  the  Spaniards  and  Americans.  In  support  of 
the  same  principle,  we  may  cite  what  Virgil(19)  has 
said,  in  speaking  of  the  opposition,  made  by  the  Car- 
thaginians, to  the  landing  of  the  Trojans  on  the  coast 
of  Africa. 

^uod  genus  hoc  hominum,  quave  hunc  tarn  barhara  morem 
Fermittit  patria  ?  hospitio  prnhibe?m(r  nrenct  ; 
Bella  cient  primaque  vetant  consistere  terra. 

(16)  Thucidydes  Hist.  lib.  1. 

(17)  Sigon:  de  rer.  lial.  lib.  20. 

(18)  Fratic.  Victoria,  de  Indiis  tract.  1 1  §  2,  3,et  4. 

(19)  Eneid.  lib  1.1.339. 

What  are  the  customs  of  this  barbarous  place  } 
What  more  than  savage  this  inhuman  race  t 
In  arms  they  rise  and  drive  us  from  tlie  strand. 

From  the  last  verge  and  limits  of  the  land Pitt. 

Vol..  T.  D 


18  THE  MARITIME  LAW        Parti. 

The  maritime  powei*  of  nations  is  not  equally  balanced. 

These  nations,  as  it  happened,  were  obliged  pa- 
tiently to  suffer  others  to  navigate  the  same  parts  of 
the  sea,  to  land  on  the  same  coasts,  and  to  carry  on 
there,  a  commerce  agreeable  to  the  inhabitants. 

20.  Wars  have,  for  a  long  time,  been  undertaken 
solely  for  the  purpose  of  maintaining  an  equiFibrium 
between  the  continental  powers.  All  treaties  bear 
the  impression  of  the  political  balance.  The  rest  of 
the  world  have  been,  constantly,  compelled  to  restrain 
great  nations,  who  have  attempted  to  encroach  on 
their  rights  by  the  aid  of  armies,  to  which  they  were 
unable  to  oppose  an  equal  force ;  but  nothing  has 
yet  been  done  to  circumscribe  within  just  limits  those 
maritime  powers  who,  to  the  prejudice  of  others, 
have  transgressed  their  proper  bounds.  In  all  ages, 
mankind  have  been  so  blind,  as  to  allow  a  single  na- 
tion to  assume  the  exclusive  empire  of  the  sea,  and 
thus  to  violate  the  imprescriptible  rights  of  nature  and 
of  nations.  If  the  naval  forces  of  each  nation  had 
been  proportioned  to  its  fortune,  and  to  the  extent 
of  its  maritime  territory  j  if  the  military  marine  of 
,  each  state  had  been  limited  by  a  general  law,  guar- 
\  anteed  by  the  forces  of  all  the  other  maritime  powers  j 
'  if  naval  armaments  had  been  commensurate  only  with 
the  necessity  of  natural  defence,  and  adapted  to  the 
I  circumstances  of  each  government,  the  world  would 
^  not  have  experienced,  in  every  age,  those  political 
concussions,  for  the  sake  of  compelling  an  usurping 
power,  which  tyrannises  over  the  ocean,  to  descend 
fi-om  that  colossal  grandeur  which  provokes  the  rest 


I 


Chap.  I.  OF  EUROPE.  19 


The  evils  which  flow  from  maritime  ambition. 


of  the  world  to  overthrow  it.  "Whether  it  be  the  in- 
tention of  the  author  of  nature  to  punish  governments 
and  men  who  overleap  the  barriers  of  the  ocean,  or 
that  the  passions  of  avarice,  ambition,  and  the  love 
of  conquest,  are  necessarily  the  first  fruits  of  military 
navigation,  it  is  certain,  that  the  most  formidable 
plagues  which  have  desolated  the  earth,  have  pro- 
ceeded from  maritime  power.  Whenever  tliis  pow- 
er has  become  exclusive,  its  destructive  effects  have 
been  oftener  and  more  severely  felt  by  the  nations  of 
the  world. 

2 1 .  When  mad  ambition  has  proclaimed  the  proud 
pretension  to  deprive  nations  of  the  common  right 
of  the  human  race  to  the  peaceful  navigation  of  the 
seas,  it  has  been  followed  by  every  crime.  Happily 
for  mankind,  this  exclusive  maritime  empire,  after 
oppressing  the  nations  who  have  suffered  its  exist- 
ence, has  destroyed  those  by  whom  it  has  been  usurp- 
ed. No  power,  no  state,  however  formidable,  can 
give  law  to  Europe;  much  less  to  the  general  mass  of 
nations. (20)  Carthage  carried  on  all  the  commerce 
of  the  known  world  :  she  turned  to  her  own  profit 
the  riches  of  other  nations ;  she  kept  a  large  num- 
ber of  foreign  troops  in  pay  ;  she  equipped  powerful 
fleets  ;  her  merchant-ships  covered  the  seas,  whose 
dominion  they  claimed  ;  and  while,  with  one  hand, 
she  held  the  ocean  in  chains,  with  the  other,  she 
shook  into  commotion  the  nations  oFtbc  earth. 


(o 


0)  See  Bartere  de  la  Liherte  des  Mers,  (om.  1. 


20  THE  MARITIME  LAW        Part  I. 

Fatal  effects  of  the  sovereignty  of  the  sea. 

22.  "  I  am  of  opinion,"  says  Isocrates,  "  That  it 
"  would  greatly  contribute  to  this  end,  (the  happi- 
"  ness  of  the  state)  if  we  laid  aside  our  ambitious 
"  claim  to  the  sovereignty  of  the  seas.  It  is  this 
"  which  formerly  dissolved  the  government  of  our 
"  ancestors,  the  happiest  that  was  ever  devised, 
"  which  now  involves  us  in  much  confusion  and  dis- 
"  tress,  and  which,  in  one  word,  is  the  occasion  of 
"  all  the  calamities  we  have  either  suffered,  or  in- 
«  flicted." 

"  Hence,"  he  adds,  "  it  is  most  evident,  that 
"  though  no  nation  can  boast  of  better  men  than  our 
"  own,  yet  this  command  of  the  seas  which  we  af- 
"  feet,  and  term  a  sovereignty,  though  it  be  more 
"  properly  named  a  misfortune,  is  sufficient  to  bring 

"  indiscriminate  ruin  on  all   who  possess  it." 

"  They  (the  Lacedemonians)  were  unacquainted 
"  with  the  dangers  attending  the  superiority  of  mari- 
"  time  power ;  they  knew  not  that  it  deprives  such 
«  as  are  intoxicated  with  it  of  the  use  of  their  facul- 
"  ties,  and,  resembling  the  nature  of  harlots,  first  ex- 
"  cites  the  desires  and  passions  of  men,  and  afterwards 
"    converts  them  into  instruments  of  destruction." 

«  Odious  to  our  allies,  placed  on  the  verge  of 
^'  slavery  and  destruction,  we  were  saved  by  the  La- 
"  cedemonians.  They,  in  their  turn,  after  exciting 
"  the  resentment  of  all  their  neighbours,  and  when 
"  the  collected  storm  was  ready  to  overwhelm  them, 
"  fled  to  Athens  for  protection,  and  there  alone  ob- 


i 


Chap.  L  OF  EUROPE.  21 


The  sovereignU-  of  the  sea,  fatal  to  those  who  possess  it. 

"  tained  it.  Who  then  would  covet  a  superiority, 
"  the  consequences  of  which  are  so  dismal  ?  Who 
"  would  not  rather  avoid  and  detest  what  both  se- 
**  duces  to  uncommon  guilt,  and  subjects  to  inevita- 
"  ble  punishmenl."*(21)  The  ancients,  accurate 
and  clear-sighted  observers,  had  foreseen  that  a  pow- 
er, founded  on  an  armed  naval  force,  by  which  death 
and  destruction  could  be  carried  into  every  quarter, 
would  generate  a  pride,  that  would,  eventually,  grow 
into  intoxication  and  madness. 

23.  Every  government,  like  every  individual,  has 
its  evil  genius,  which  impels  it,  sooner  or  later,  to  the 
commission  of  irreparable  faults.  Sovereigns  are, ^f- 
tc;i,  in  the  language  of  the  poet, 

Frappe  decet  e>;prit  de  vertige  et  d'erreur, 
De  lu  chute  dcs  rois  funeste  avant-coureur.f 
With  madness  struck,  before  their  fatal  hour. 
The  dire  precursor  of  their  fall  from  pow'r. 

The  exclusive  empire  of  a  common  element,  pos- 
sesses nothing  durable.   Of  all  forms  of  ambition,  that 

*  The  more  correct  and  elegant  translation  of  Dr.  Gillies  is  here 
used,  instead  of  following  the  loose  and  inaccurate  version  of  the 
French T. 

(2 1 )  Isocrates,  de  Pace. 

t  Racine's  Athulie. 

The  same  sentiment  is  contained  in  a  line  of  Apuleius. 
3uem  deus  rult  perdere  ilk  prius  dementat. 

Tlie  worst  consequence  is,  that  tlie  people  suffer  for  the  follies  of  tlicn 
rulers. 

^icquid  deli  rant  reges  plectuntur  Achivi. — Hor.  Epist  lib.  1.  2 T. 


22  THE  MARITIME  LAAV        Parti. 


Ambition  and  injustice  produce  their  own  ruin. 


of  ruling  over  the  sea  is  the  most  wild^  for  the  lines  of 
dominion  and  the  bounds  of  property,  are,  alternate- 
ly, broken  by  the  vessels  of  other  nations,  and  con- 
tinually effaced  by  the  fleets  moving  over  its  surface. 
This  sceptre,  illegitimate,  because  it  is  usurped,  is 
broken  against  the  smallest  rock,  and  soon  buried 
beneath  those  independent  waves  over  which  it  ty- 
/      •'  rannised.     In  all  times,  among  all  nations,  in  every 
1/       I    climate,  unjust  power  has  been  precarious  and  un- 
I    stable.     The  laws  of  equity  and  peace,  have  a  di- 
'    rect  tendency  to  the  preservation  of  the  rights  and 
benefits  of  society.     Every  invasion  of  the  property 
of  another,  every  law  of  force,  necessarily  draws  after 
it^ts  own  destruction.     Ambition  produces  usurpers 
and  tyrants  ;   and  tyranny  calls  for  vengeance.    In 
all  ages,  oppression  has  been  the  principal  cause  of 
the  destruction  of  empires,  founded  by  injustice  and 
usurpation. 

24.  It  is  the  right,  it  is  the  duty  of  all  nations,  to 
arm  themselves  against  the  universal  oppressor  ;  to 
shake  off,  and  break  for  ever,  the  yoke  of  a  tyrant, 
who  wishes  to  hold  in  chains,  the  seas,  the  com- 
merce, and  the  industry  of  all  nations.  Justice  has 
its  invariable  laws  ;  oppression  ought  to  have  its  lim- 
its. When  it  arrives  at  its  height,  it  should  be  over- 
thrown. Thus,  the  pride  and  cupidity  of  Carthage 
were  expiated  by  its  degradation.  Its  splendour  was 
followed  by  humiliation,  and  that  fear  with  which, 
by  the  force  of  her  numerous  fleets,  she  overawed  the 


Chap.  L  OF  EUROPE.  23 


The  destruction  of  Carthage  caused  by  avarice  and  ambition. 


world,  was  succeeded  by  contempt.  She  wished,  in 
vain,  to  protract  the  last  moments  of  her  credit  and 
renown ;  the  day  of  vengeance  had  arrived.  The  Car- 
thaginians, invincible  abroad,  were  destroyed  in  Car- 
thage, by  Agathocles  and  Scipio.  Her  name,  her  ty- 
rannies, her  spoliations,  the  insolent  speeches  of  her 
generals,  the  outrageous  pretensions  of  her  nego- 
tiators, have  been  transmitted  to  posterity,  who  are 
happy  in  being  unable  to  discover  where  are  now  the 
ruins  of  that  proud  city.*  The  same  giddy  spirit  of 
ambition,  induced  the  different  nationsof  Greece,  in 
their  turn,  to  believe,  that  they  might  retain  and  pre- 
serve the  maritime  empire  which  they  had  usurped  j 
but  let  us  cast  our  eyes  towards  the  wrecks  of  so  ma- 
ny once  flourishing  cities  and  kingdoms. 

In  the  following  sketches,  will  be  seen  the  conse- 
quences of  this  mad  pretension,  such  as  they  are  pre- 
sented in  the  history  of  every  nation  that  has  attempt- 
ed to  arrogate  to  itself  the  empire  of  the  seas. 

*  Did  the  destruction  of  Carthage  by  a  haughty  and  implaca- 
ble rival,  produce  any  benefit  to  other  nations  ?  They  were  sub- 
jected to  the  domination  and  oppression  of  another  power  more  ir- 
resistible, and  not  less  rapacious. 

There  are  many  readers  who  will  question  both  the  justice  and 
the  policy  of  the  measure,  and  who  prefer  the  moderation  of  Scipio 
Nasica,  in  the  memorable  debate  on  this  subject  in  the  Roman  Se- 
nate, to  the  stern  and  unrelenting  severity  of  Cato T. 


24  THE  MARITIME  LAW        Part  I. 

Ancient  naval  powers. 

ARTICLE  11. 

Of  the  ancient  States  zvho  have  claimed  the  Empire  of 
the  Sea. 

§  1 .  CLAIMS  to  maritime  empire  are  of  very  high 
antiquity.  Eusebius  has  transmitted  to  us  a  chrono- 
logical series  of  nations,  who,  at  different  times,  and 
for  certain  periods,  antecedent  to  the  famous  battle  of 
Salamis,  have  been  considered  as  possessing  the  em- 
pire of  the  sea  ;(22)  but  they  are  indebted  for  this  re- 
putation, to  their  having  rendered  themselves  formi- 
dable, by  their  piracies,  carried  on  in  particular  parts 
of  the  Mediterranean.  From  the  false  ideas  that 
men  always  form  of  audacity  and  strength,  those  na- 
tions have  even  derived  glory  from  their  predatory 
excursions. (2 3)  Many  other  nations  have,  in  their 
turn,  disputed  the  empire  of  the  sea,  and  its  waves 
have  often  been  tinged  with  the  blood,  which  the  un- 
bridled ambition  of  ruUng  over  that  element  has 
caused  to  flow.  We  shall  pass  rapidly  over  the  dif- 
ferent ages  of  the  world,  and  observe  what  nations 
have  acquired  this  ascendancy. 

(22)  Eusebius  in  Chronic,  lib.  2.  Appollod.  lib.  2.  Plin,  hist,  nat, 
lib.  7.  cap.  56. 

(23)  Latrocinium  maris  illis  temporibus  glories  habebatur.  Justin, 
hist.  lib.  43.  cap.  3.  cvk  ex^onroi  viii  oolcx^vm  tovtov  ToiJ  Egyov,  ^sgovTOf 
^6  Tt  Kx]  ^o^ric  i^aXXov — Thuc)'dides,  lib.  1.  §  5.  This  occupation,  in- 
stead of  being  regarded  as  disgraceful;  wa^  considered  as  reputable. 


Chap.  /.  OF  EUROPE.  25 


Tyre. — The  Phoenicians  the  first  naval  power. 

Section  I. 

TYRE. 

§  1.  THEPhoenicians,  known  in  the  sacred  writ- 
ings, by  the  name  of  Canaanites,(24)  a  word  that, 
in  the  oriental  language,  signifies  ??iejrha?itx,[25)  so 
much  excelled  in  the  knowledge  of  naval  affairs,  that 
the  invention  of  a  marine,  according  to  Catullus,  has 
been  ascribed  to  them. 

Prima  ralem  renlis  credere  docia  Tyrus. 

Inhabiting  the  coast  of  the  Mediterranean,  from 
the  island  of  Aerad  to  Mount  Carmel,  they  were  ad- 

(2+)  The  only  name  under  which  the  Phoenicians  were  known, 
in  the  early  ages,  and  particularly  by  the  sacred  writers,  is  that  of 
Canaanites.  They  are  so  called  by  Solomon,  in  Proverbs,  ch.  3], 
V.  24.  This  appellation  was  preserved,  for  a  long  time,  by  the 
Phffinicians,  in  their  colonies.  Those  who  were  established  on  the 
coast  of  Africa,  called  themselves  by  that  name,  in  (he  time  of 
St.  Augustin,  that  is,  in  the  fifth  century  of  the  Christian  era.  St. 
Aug.  expos,  inchnat.  cpist.  ad  Rom.  Thename  of  PLosnicians,  found 
among  prophane  authors,  was  given  to  them  by  strangers.  Sanchoni- 
athon,  in  a  fragment  of  his  writings  which  remains,  mentions  that 
Chna  (which  is  an  abbreviation  of  Canaan)  is  their  original  name,  and 
was  afterwards  changed  to  Phoenicians.  The  strangers  who  made 
this  alteration,  were,  probably,  the  Egyptians  ;  but  it  has  had  the 
effect  to  make  the  ancient  name  forgotten.  Vid.  Eusebius  prepur . 
Evangel,  lib.  l,c.  9.  See  also  the  learned  observations  of  Abb6 
Barlhelemi,  in  his  first  letter  on  some  Phoenician  medals,  inserted 
in  Ihe  Journal  des  Savans,  for  the  month  of  August,  1760. 

(25)  Braun,  dei^est.  Sacord.  htebreor.p.  251. — Hist.  Universelle, 
iom.  l./j.  219. 

Voi .  r.  E 


QB  THE  MARITIME  LAW        Part  L 

Maritime  advantages  of  tlie  Phoenicians. 

vantageously  situated  for  extending  their  commerce 
over  this  sea.  Every  thing  invited  them  to  become 
navigators.  Inspired  by  that  creative  genius,  which, 
from  a  horde  of  savages,  made  them,  after  a  few 
ages,  an  illustrious  nation,  they  invented,  in  the 
course  of  a  few  generations,  many  new  arts,  and  con- 
siderably extended  the  ancientlimits  of  Phoenicia. (26) 
Commodious  harbours  offered  them  a  safe  asylum  for 
their  vessels,  and  Mount  Lebanon  furnished  the  tim- 
ber requisite  for  building  vships.  They  profited  so 
well  by  these  advantages,  that,  if  they  were  not  the 
inventors  of  navigation,  they  were,  at  least,  the  first 
people  who  made  long  voyages,  and  armed  their 
ships  for  war.  Interest  and  ambition  conspired  to 
render  them  the  most  celebrated  navigators  of  an- 
cient times.  They  visited,  in  turn,  Sicily,  Sardinia, 
Greece,*  Gaul,  and  Spain.  Another  sea  soon  be- 
came necessary  to  gratify  their  ambition  3  they  bold- 

(26)  According  to  Straho,  in  his  geography,  lib.  16.  Phanicia 
comprehended  the  whole  maritime  coast  from  Onthosius  to  Pelusium. 
Procopiiis  de  hello  Vand.  lib.  1 1,  c.  10,  calls  all  the  country,  from 
Sidon  to  the  confines  of  Egypt,  Phosnicia.  This  leads  us  to  suppose^ 
that  the  Philistines  were  incorporated  with  the  Phoenicians,  and 
took  their  name.  Herodotus,  lib.  1,  p.  59,  calls  the  inhabitants  of 
Askalon,  which  was  one  of  the  cities  belonging  to  the  Pliilistines, 
Phoenicians ;  their  other  cities,  without  excepting  Rhino-colura,  are 
also  denominated  by  ancient  historians  and  geographers,  cities  of 
Phoenicia.  Dionys.  Perieg.  v.  905 — 910. 

*  "  Phcenices  prinii  mercaliiris  et  viercihussuis  arariliam,  et  mag~ 
nificentiam,  et  inexplehiles  cupiditates  omnium  rerum  iiipportavervvt 
in  Grcpciam."  Frajrmenta  Cicer T. 


Chap.  I.  OF  EUROPE.  27 

Progress  of  the  commerce  of  tlie  Phoenicians. 

Jy  passed  the  columns  of  Hercules,  and  their  courage 
was  rewarded  by  the  discovery  of  Great  Britain. (27) 

2.  The  countries  frequented  by  the  Phoenicians, 
were  almost  all,  which  composed  the  ancient  world, 
during  the  second  period  of  history,  that  is,  from  the 
reign  of  Sesostris  to  that  of  Cyrus  ;  a  period,  during 
which  the  east  and  the  south  were  as  well  known, 
as  the  west,  in  a  subsequent  age.  The  Phoenicians, 
treading  in  the  steps  of  the  conquerors  of  the  im- 
mense regions  of  Asia  and  India,  established  their 
commerce,  by  means  of  their  navigation,  in  all  the 
places  over  which  those  great  monarchs  extended 
their  dominion. (28)  Egypt  itself,,  which  continued 
for  a  long  time,  as  impenetrable  to  strangers  as  Chi- 
na, was  accessible  to  the  Phoenicians.    Ships  bearing 


(27)  Eustbius  in  Chronic,  lib.  2.  Diodor.  lib.  5,  p.  Z-IS.  Strabo. 
Geog.  lib.  \,page  So. 

(2S)  Robertson,  in  his  History  of  America,  in  mentioning  the 
reasons  which  induced  him  not  to  doubt  of  the  voyage,  made  round 
Africa  by  Necho,  king  ot"  Egvpt,  about  the  year,  A.  M.  3100,  and 
904'  before  Christ,  supposes  this  monarcli  employed  tlie  Phoenician 
crews  to  man  his  fleet.*  See  also  on  this  subject  an  interesting 
pamphlet,  by  M.  Chapus,  member  of  the  legislative  body,  entitled 
liisloire  abiegce  den  Kciolutions  du  Commerce,  ch.  8. 


*  The  date  here  g^ven,  is  evidently  erroneous.  Robertson  sa3's,  "  A  Plicc- 
nician  fleet,  we  are  tokl,  fitted  out  by  Necho,  king  of  Eg}pt,  took  its  depar- 
ture  about  604  years  before  the  Chi'istian  era,  from  a  port  in  the  Red  Sea, 
doubled  the  southei-n  j)romoutoiy  of  Africa,  and,  aRcr  a  voyage  of  three 
years,  returned  by  tlic  straights  of  Gades  to  the  inoulli  of  tlie  Kile." T. 


28  THE  MARITIME  LAW         Part  L 

Rise  and  fall  of  the  maiitime  power  of  the  Phanicians. 

their  flag,  might  ascend  the  Nile,  by  one  of  its 
mouths,  and  their  merchants  occupied  a  quarter  of 
the  city  of  Memphis,  in  the  vicinity  of  the  Temple  of 
Vulcan,  called  the  Tyrian  Canton^  from  the  name  of 
Tyre,  their  chief  city.(29) 

3.  By  means  of  their  extensive  commerce,  and 
their  skill  in  navigation,  they  at  length  acquired 
the  empire  of  the  sea,  which  they  long  retained. 
They  became,  however,  the  tyrants  of  the  ocean, 
and  exercised  piracy,  until  their  dominion  was  an- 
nihilated by  the  most  dreadful  catastrophe.  Ne- 
buchadnezzar, king  of  Babylon,  marched  against 
Tyre,  about  the  year  580,  before  Christ,  and,  after  a 
siege  of  thirteen  years,  made  himself  master  of  the 
city. (30)  The  conqueror,  irritated  at  so  long  a  re- 
sistance, exterminated  every  thing  by  fire  and  sword, 
and  destroyed  the  city  to  its  foundations. 

4.  Re-established  under  Cyrus,  and  more  splendid 
than  ever  under  the  kings  of  Persia,  Tyre  paid  dearly 
for  arresting  the  march  of  Alexander  the  Great.  A 
murderous  siege  transformed  it  into  a  heap  of  ruins. 
From  the  dominion  of  the  kings  of  Syria,  successors 
of  Alexander,  it  passed  under  that  of  the  Romans. 
Their  empire,  mild  and  tranquil,  was  favourable  to 
commerce.     Tyre  took  advantage  of  this  circum- 

(29)  See  an  excellent  work  by  Mr.  Peuchet,  entitled,  Recherchts 
sur  Vetat  et  Its  progris  du  commerce  et  de  la  navigation  des  anciens, 
inserted  in  the  Bibliotheque  Commerciale,  Sept,  1803. 

(30)  Joseph.  Antiquit.  lib.  10,  cap.  11. 


Chop.  I.  OF  EUROPE.  29 

Destruction  of  TjTe. — jTigina. 

Stance  to  raise  herself  to  her  former  greatness;  to 
.  reassume  her  glory,  and  to  become  the  principal 
city  of  Syria.  In  the  ages  which  followed,  she  ex- 
perienced, under  the  Saracens,  and  the  Christian 
princes,  the  same  alternations  of  prosperity  and  ad- 
versity. She  has  undergone,  at  last,  the  fate  of  all 
the  ancient  cities  which  have  fallen  under  the  Turk- 
ish yoke  ;  exhibiting  nothing  but  a  heap  of  ruins, 
and  of  huts  occupied  by  miserable  fishermen.  A 
melancholy  fate  !  the  sad  fulfilment  of  the  prophecy 
of  Ezekiel.(31) 

SedioJi  II. 

iEGINA. 

§'l.  yEGINA,  a  considerable  island,  is  situated  inthe 
Salonic  Gulf,  near  the  port  of  Pireus,  and  not  far  from 
Salamis,  illustrious  for  the  famous  victory  of  the 
Greeks  over  the  Persians.  A  tradition,  mentioned  by 
Hesiod,  confers  on  it  the  honour  of  having  invented 
the  art  of  navigation.-  The  ^ginetes,  inthe  reign 
of  Darius,  son  of  Hystaspis,  having  rendered  their 
island  the  centre  of  the  commerce  of  all  Greece, 
by  their  attention  to  the  maintenance  of  a  large 
naval  force,  were  considered  as  the  most  powerful 


(.31)  "  And  they  shall  destroy  the  walls  of  Tyrns,  and  break 
down  her  towers  ;  I  will  also  scrape  her  dust  from  her,  and  make 
her  like  the  top  of  a  rock.  It  shall  be  a  place  for  the  spreading  of 
nets  in  the  midst  of  the  sea  ;  for  I  have  spoken  it  saith  the  Lord 
God  ;  and  it  shall  become  a  spoil  to  the  nations."  Ezekiel,  ch.  To, 
V.  4  and  5. 


30  THE  MARITLME  LAW        Part  I. 

» 

Destruction  of  the  naval  power  of  j^gina. — Crete. 

maritime  people  of  that  age. (32)  They  distin- 
guished themselves  in  the  wars  against  the  Persians,, 
and  earned  the  palm  of  valor.  For  this  reason,  they 
have  been  ranked  among  those  nations  who  have, 
for  a  time,  held  the  empire  of  the  sea. (33)  The  part 
which  they  performed  in  Greece,  was  as  short  as  it 
was  brilliant.  They  were  able  to  maintain  them- 
selves, for  a  short  time  only,  in  opulence  and  pros- 
perity. Driven  out  of  the  island  by  the  Athenians  in 
the  time  of  Pericles,  the  ^Eginetes  never  recovered 
from  their  fall. (34)  Their  naval  power  was  entirely 
destroyed,  and  their  commerce  annihilated. (35) 

Section  III, 

CRETE. 

§  1 .  MINOS,  the  second  of  that  name,  king  of 
Crete,  who  took  such  sanguinary  vengeance  on  the 
Athenians  for  the  murder  of  his  son  Androgeus,(s6) 
has  been  regarded  as  the  first  sovereign  of  that  coun- 
try, who  held  the  empire  of  the.sea.(37)  But  this  em- 
pire, for  which  he  has  been  so  much  honoured  by  his- 
torians, must  be  confined  to  the  superiority  Minos  en- 
joyed in  the  seas  of  Crete,  and  of  the  adjacent  islands. 

(32)  Strabo.  Geog.  Herod.  Hist.  lib.  5.    Plutarch  in  Themistoc. 

(33)  Strabo.  JEYianvar.  Hist. lih.  12, c.  10. 
(34-)  Pausan.  in  Corinth. 

(35)  JEMan.  in  loc.  cit.  Strabo.  loc.  cit.  Thucyd.  Hist.  lib.  1. 

(36)  Plato  de  legibus,  lib.  4-. 

(37)  Thucyd.  Hist.  lib.  I.  Herodot.  lib.  3,  n.  122.  Aristot.  df 
repub.  lib.  2,  c.  10.  Diod.  lib.  4.  Strabo  loc.  cit. 


Chap.  L  OF  EUROPE.  31 

Maritime  power  of  the  Cretans  :  its  final  destruction. 

Having  become  the  most  powerful  in  those  places,  by 
the  great  number  of  his  ships,  he  was  soon  able  to 
equip  a  naval  force  sufficient  to  clear  the  seas  of  the 
pirates  who  infested  them,  to  seize  on  the  neighbour- 
ing islands,  become  their  legislator,  and  transmit 
the  government  of  them  to  his  children. 

SJ,  After  the  abolition  of  the  monarchy,  there  re- 
mained, among  the  Cretans,  no  union  to  constitute  a 
national  body.  National  wars  with  the  neighbouring 
islanders,  seldom  occurred ;  and  when  they  sallied 
out  from  their  own  island,  for  tlie  purpose  of  attack 
or  defence,  it  was  always  in  single  vessels,  and  not 
with  fleets,  as  would  have  been  the  case,  if  the  people 
had  been  connected  by  the  ties  of  common  interest. 
The  Cretans  appeared,  at  length,  to  prefer  a  piratical 
warfare  to  every  other.  They  infested  the  Mediter- 
ranean, and  harrasscd  navigation  to  the  very  coasts  of 
Ital)'.  Such  conduct  furnished  the  Romans  with  a 
pretext  for  attacking  Crete,  at  that  time  perfectly  in- 
dependent. They  subdued  the  island,  changed  its 
government,  and  reduced  it  to  a  province  of  the  em- 
pire. The  Ottomans,  who,  in  almost  all  the  islands 
in  these  seas,  succeeded  the  Romans,  have  become 
masters  of  Candia,  which  they  easily  snatched  from 
the  hands  of  the  Venetians. 

Section  IV. 

RHODES. 

§  l.  THE  fortunate  positionof  the  island  of  Rhodes, 
ihe  excellence  of  its  harbours,  and  the  fertility  of  its 


32  THE  MARITIME  LAW        Parti, 

Rhodes  :  its  great  naval  power. 

territory,  created  in  the  inhabitants  an  attachment 
to  commerce,  and  to  a  marine,  which  they,  for  a 
long  time,  cultivated  with  the  greatest  success.  Pro- 
fiting by  the  advantages  they  enjoyed,  they  establish- 
ed a  maritime  empire,  more  real  and  absolute  than 
that  of  any  other  nation  of  antiquity,  all  of  whom  im- 
agined themselves  the  masters,  because  they  were 
the  tyrants  of  the  sea.  Less  desirous  of  destroying, 
than  of  defending  the  liberty  of  others,  by  means  of 
that  honourable  preponderance  which  they  had  ac- 
quired in  the  Mediterranean,  the  Rhodians  became 
the  protectors  of  nations  they  might  have  enslaved. 
It  is  not  without  reason  that  Florus  calls  the  inhabi- 
tants of  Rhodes  a  nautical  people  ^[^^Z)  and  that  Euse- 
bius  terms  them  the  masters  of  the  sea  j,'(39)  for  the  na- 
val laws  they  promulgated  are  so  full  of  wisdom  and 
equity,  that  they  have  served  for  the  maritime  law 
of  nations  throughout  the  whole  extent  of  the  Me- 
diterranean. Rome  herself  respected  them  ;  follow- 
ing, in  this  instance,  a  wise  practice,  of  adopting 
whatever  she  found  excellent  among  foreign  na- 
tions.(40) 

§  2.  At  Rhodes,  the  Romans  were  regarded  as 
members  of  a  common  family.  They  assembled 
there,  when  expelled  from  Asia  by  Mithridates,  king 

(38)  Florus  lli%t.  lib.  2,  cap.  7.    Populus  nauticus. 

(39)  Eusebius  in  Chronic,  lib.  2. 

(40)  See  what  is  said  on  the  Rhodian  Laws,  in  chapter  3,  arti- 
cle 2,  of  this  volume. 


Chap.  I.  OF  EUROPE. 


Conquest  of  llliodes  by  tlie  Romans,  and  its  final  ruin. 

of  Pontus.     That  prince  would  have  made  some  il- 
lustrious prisoners,  could  he  have  forced  the  city  to 
surrender,    when   he   laid  siege  to  it':  but  he  met 
with  an  obstinate  resistance,  as  well  from  the  inhab- 
itants,  as  from  those  who  had  taken  refuge  there, 
who  fought  as  for  their  common  country.    This  fra- 
ternization, however,  was  injurious  to  the  Rhodians, 
since  they  were  not  allowed  to  remain  neutral  in  the 
domestic  dissensions  of  their  allies.    They  took  part 
with  Pompey,  and,  afterwards,  with  Caesar.  They  de- 
fended themselves  with  courage  against  Cassius,  the 
assassin   of  Caesar,    and   engaged   in  two   battles, 
in  which  they  lost  the  greater  part   of   their  ves- 
sels.    The  city  was  treacherously  opened  to  Cas- 
sius, who   stripped   it  of  its  most  sumptuous  orna- 
ments, punished  the  principal  inhabitants,  and  ex- 
acted from  them  heavy  contributions.    Marc  Antho- 
ny restored  to  Rhodes  its  privileges,  and  annexed  to 
it  some  adjacent  islands,  as  a  part  of  its  territory. 
The  Rhodians,  such  zealots  for  liberty,  so  oppressed 
these  different  dependencies  with  taxes,  that  the  Dic- 
tator was  obliged  to  restore  them  to  their  former 
state.     Vespasian  imposed   a   tribute  on    Rhodes, 
which,  from  the  sovereign,  became  merely  the  capi- 
tal of  the  islands  in  the  Mediterranean,  subjected  to 
the   Roman  power.    She  afterwards  recovered  her 
independence  for  a  short  time  :    but  the  Ottomans 
destroyed  it  for  ever. 
Vol.  I.  F 


34  THE  MARITIME  LAW        Part  I 

Persia. — Maritime  expeditions  of  Darius  and  Xei-xes. 

Section  V. 

PERSIA. 

§  1.  DARIUS,  son  of  Hystaspis,  seated  on  the 
throne  of  Cyrus,  had  little  else  to  engage  his  atten- 
tion, than  the  restoration  of  whatSmerdis,  the  usurp- 
er of  the  kingdom,  had  destroyed.  Desirous  of  in- 
flicting vengeance  on  the  Athenians  and  Cretans, 
who  assisted  the  revolt  attempted  by  the  Milesians, 
under  the  direction  of  Aristigonus,  he  sent  against 
them  an  army  of  600,000  men,  and  a  fleet  of  600 
ships,  furnished  by  the  Phoenicians,  the  Egyptians, 
the  Cypriots,  and  the  lonians.  The  disgraceful  loss 
of  the  battle  of  Marathon,  did  not  discourage  him ; 
he  made  new  preparations  against  Greece.  Darius 
died  without  executing  his  project,  and  Xerxes  in- 
herited his  vast  dominions,  and  his  boundless  ambi- 
tion. 

2.  Xerxes,  while  he  menaced  the  liberty  of 
Greece,  was  so  elated  with  the  great  army  with 
which  he  had  determined  to  attack  it,  that  having 
met  with  a  storm,  he  treated  the  sea  as  a  rebellious 
slave.  He  ordered  it  to  be  scourged  with  three  hun- 
dred strokes  of  the  whip,  and  chains  to  be  thrown 
into  it.  The  battle  of  Salamis  cured  him  of  his  mad- 
ness,(41)  and  overthrew  the  maritime  forces  of  the 

(41)  The  immense  fleet  of  Xerxes  was  beaten  at  Salamis  by  the 
combined  fleet  of  the  Greeks,  consisting  only  of  300  vessels.  The 
Greeks,  without  doubt,  owed  their  victory,  in  some  degree,  to  their 


Chap.  I.  OF  EUROPE. 


Disgraceful  retreat  of  Xerxes  out  of  Greece. 

nations  he  had  brought  with  him,  for  the  conquest 
of  Attica  and  the  Pcloponnesus.(42)  Thus,  after  hav- 
ing enchained  the  waves,  cut  through  mountains, 
filled  up  valHes,  drained  rivers,  covered  the  sea  with 
vessels  innumerable,  and  led  on  millions  of  men  in  his 
train,  he  found  himself  alone^. abandoned,  trembling, 
and  happy  to  find  a  fishing  boat,  in  which  to  recross 
the  Hellespont.  His  retreat  from  Greece  was  as  hu- 
miliating, as  his  entry  had  been  formidable  and 
haughty.  He  signed  a  treaty,  which  fixed  the  coast 
of  Pamphylia,  as  the  limits  for  the  navigation  of  his 
subjects.  Thus,  for  the  first  time,  we  behold  the 
freest  nation  in  the  world,  exercising  a  despotism  over 
the  sea,  to  wdiich  the  most  absolute  monarch  was 
forced  to  submit. 

remaining  in  a  narrow  strait,  where  a  great  number  of  ships  were 
not  only  useless,  but  a  hindrance  to  each  other.  Yet  the  great  part 
of  the  glory  of  that  day,  may  be  fatrly  attributed  to  their  courage 
and  experience  in  naval  combats.  The  Greek  vessels  were  manned 
by  righting  men  ;  those  of  the  Persians,  with  merchant-sailors,  ex- 
cellent navigators,  indeed,  but  little  acquainted  with  the  science  of 
naval  tactics. 

(12)  Authors  are  not  agreed  as  to  the  number  of  naval  forces  em- 
ployed in  this  famous  expedition.  If  we  may  credit  Herodotus, 
the  Persian  fleet  consisted  of  1200  sail,  besides  transports :  three 
hundred  of  Phoenicians,  and  Syrians  of  Palestine,  two  hundred 
Egyptians,  fifty  from  the  isle  of  Cyprus,  one  hundred  from  Cilicia, 
thirty  from  Pamphylia,  fifty  from  Lycia,  one  hundred  from  Doris, 
seventy  from  Caria,  one  hundred  from  Ionia,  seventeen  from  some 
^mall  islands,  sixty  from  iEolia,  and  one  hundred  from  the  coasts 
•if  the  Hellespont  and  the  Euxine. 


56  THE  MARITIME  LAAV        Part  L 


Destruction  of  the  Persian  marine. — Greece. 


I 


3.  The  battle  of  Salamis  was  followed  by  tliat  of 
Platasa,  and  of  Mycale.  The  loss  of  these  three  bat- 
tles, was  a  most  dreadful  stroke  to  the  Persian  pow- 
er. The  Athenians,  masters  of  the  sea,  delivered  Cy- 
prus, Thrace,  Macedonia,  and  the  Chersonesus,  from 
the  yoke  of  the  Persians.  Soon  after,  under  the  com- 
mand of  Cimon,  they  drove  the  Persians  out  of  Io- 
nia, and  burnt  or  sunk  all  the  vessels  of  the  great 
king. 

Section  VI. 

GREECE. 

§  1.  GREECE  is  bounded  on  the  east  by  the  Pro- 
pontis  and  -^gean  sea,  on  the  south  by  the  Ionian 
sea.  It  is  almost  divided  by  the  Corinthian  gulf,  and 
is  surrounded  with  islands  not  far  from  the  main 
land,  and  at  a  short  distance  from  each  other.  The 
necessity  of  mutual  intercourse  felt  by  the  inhabitants 
of  the  continent,  and  the  islands,  and  a  desire  to  ex- 
change the  productions  of  their  respective  countries, 
prompted  them,  at  an  early  period,  to  devote  them- 
selves to  navigation, 

2.  Lively  and  enterprising,  the  Greeks  have  so 
highly  cultivated  the  arts  and  sciences,  that  we  always- 
turn  our  eyes,  with  pleasure,  to  a  region  from  whence 
we  have  derived  so  much  intellectual  light.  After 
the  brilliant  victories  gained  over  the  Persians,  they 
neglected  nothing  to  maintain  their  superiority  at 
5ea.    Obstinate  and  self  conceited,  they  were  more 


Chai).  I.  OF  EUROPE.  37 

Athens  and  Lacedcmon,  rivak  in  maritime  pover. 

desirous  of  exciting  the  attention  and  admiration  of 
other  nations,  than  of  acquiring  subjects.  Too  jealous 
of  one  another,  to  enjoy  in  common  the  fruits  ot  their 
success,  they  became  a  prey  to  the  most  cruel  dissen- 
sions. The  Athenians,  persuaded  that  they  owed  the 
preservation  of  their  country  to  their  marine,  resolved 
to  keep  up  their  maritime  forces.  Themistocles  pur- 
sued the  wisest  measures  to  augment  them  ;  and  Aris- 
tides  having  become  their  leader,  gained  for  his 
countrymen,  the  empire  of  the  sea,  of  which  the  La- 
cedemonians had,  hitherto,  been  in  possession.  The 
latter  saw,  not  without  jealousy  and  anxiety,  the  ra- 
pid increase  of  the  maritime  power  of  the  former, 
and  the  extension  of  their  empire  over  the  /Egean 
and  Ionian  seas. 

§  3.  These  two  rival  republics,  so  different  in  their 
manners  and  customs ;  one  distinguished  for  polite- 
ness and  luxury,  the  other  for  the  severity  of  its  go- 
vernment y  one  engaging  our  affections,  the  other 
extorting  our  admiration,  were  often  at  war  with  each 
other.  The  Athenians  would,  probably,  have  main- 
tained their  niaritime  preponderance,  for  a  much 
longer  period,  if  the  Lacedemonians,  forgetting  the 
principles  of  Lycurgus,  their  illustrious  legislator,  had 
not  resolved  to  secure  their  empire  on  land  by  that 
of  the  sea.(43)  But  Sparta,  herself,  would  never  have 

(-1.3)  Ciagius,  de  repitb.  Ixicedevwn.  lib.  3,  c.  4,  pretends,  that  Ly- 
curgus had  positlvel)'  forbidden  the  Spartans  to  build  vessels,  or  to 
maintain  seamen  ;  but   there  is  little  probability  that  any  person 


38  THE  MARITIME  LAW        Parti. 

Alliens  taken,  and  its  naval  power  destroyed. 

been  able  to  execute  so  great  a  scheme,  had  it  not 
been  for  the  blind  ambition  of  the  Athenians,  which 
impelled  them  to  the  unfortunate  expedition  into  Si- 
cily, attended  with  such  disastrous  consequences  to 
their  power.  The  Lacedemonians  took  advantage 
of  the  distress  of  their  rival,  attacked  her,  and  captur- 
ed eighty  vessels.  They  soon  laid  siege  to  Athens 
in  form,  forced  it  to  surrender  at  discretion,  and  to 
open  its  gates  to  the  conquerors,  who  demolished  its 
fortifications.  Conon,  by  rebuilding  the  walls  of  his 
country,  could  not  restore  her  maritime  power.  The 
Spartans  who,  with  the  aid  of  the  Persians,  had  de- 
stroyed it,  were  unable,  in  their  turn,  to  preserve  their 
own  power,  when  their  allies  ceased  to  supply  them 
with  ships  and  money. 

4.  The  Lacedemonians,  after  Athens  was  thus  hum- 
bled, took  their  place  among  the  number  of  those 
nations  who  have  exercised  an  absolute  despotism 
over  the  Mediterranean  sea.  Alcibiades,  by  an  in- 
sidious policy,  under  the  pretext  of  opening  to  them 
the  road  to  fortune,  led  them  to  ruin.  AVhen  he  took 
refuge   at  Lacedemon,  he  advised   the  kings,  the 

would  have  thought  of  making  such  a  law  in  a  country  like  that  of 
Laconia,  where  therewere,  at  least,  fifty  maritime  towns,  and  which, 
if  prohibited  from  fishing,  and  from  the  commerce  of  Asia,  Africa 
and  Sicily,  would  have  been  deserted.  Independently  of  this  conside- 
ration, the  pretended  prohibition  of  Lycurgus  is  contradicted  by  an 
infinitude  of  facts  ;  for  history  informs  us,  that  the  Lacedemonians 
always  had  armed  vessels  ;  and  that  in  the  time  of  Crce.<;us,  they 
landed  troops  in  the  isle  of  Samos,  to  which  they  had  been  attract- 
ed by  the  desire  of  plunder. 


Chajh  I.  OF  EUROPE.  39 

Maritime  despotism  of  Sparta,  destroyed  by  Conon. 

ephori,  and  the  people,  to  augment  their  marine, 
and  to  put  themselves  in  a  condition  to  compel  every 
other  flag  to  do  homage  to  theirs,  and  to  become, 
at  length,  real  Thalassocrates,  or  rulers  of  the  Gre- 
cian seas.(44-)  We  feel  hatred  towards  the  Spartans 
for  their  pretending  to  rule  over  the  continent ;  but 
WQ  detest  them  still  more,  when,  by  the  perfidious 
counsel  of  an  Athenian,  they  attempted  to  become 
the  tyrants  of  the  waves. 

5.  Pride,  and  the  abuse  of  prosperity,  that  caused 
the  fall  of  Athens,  soon  made  their  insolent  rival  ex- 
perience the  same  fate.  The  empire  of  the  sea, 
which  Lacedemon  had  acquired  at  the  battle  of  Egos- 
Potamos,  by  the  talents  of  Lysander,  was  annihilated, 
ten  years  after,  at  the  battle  of  Gnidos,  when  Conon 
totally  destroyed  her  fleet  and  naval  forces.  All 
subsequent  efforts  to  re-establish  her  marine,  were 
ineffectual ;  for,  at  the  time  she  was  incessantly  oc- 
cupied in  its  restoration,  her  land  forces  were  entirely 
destroyed  by  Epaminondas.  Lacedemon  was  soon 
afterwards  plunged  into  the  lowest  abyss  of  misfor- 
tune, till,  at  length,  she  was  exterminated  by  the 
dreadful  tyranny  of  Nabis ;  a  scene  that  forms  the 
most  hideous  picture  in  the  history  of  expiring 
Greece. 

6.  The  fall  of  these  two  republics,  changed  the 
face  of  Greece.    The  fortune  of  Athens  and  Eace- 

M'l-)  Isocrates,  Oratio  ad  Philipum,  p.  180. 


40  THE  MARITIME  LAAV        Part  I 


Fall  of  the  Grecian  power.— Philip  of  Macedon. 


demon,  passed  to  Thebes ;  and  Thebes,  in  her  turn, 
after  a  brilliant  prosperity,  shortened  by  its  auda- 
city, was  enveloped  in  the  same  ruin,  and  the  empire 
of  the  Grecian  seas,  was  abandoned  to  the  Macedo- 
nians. 

Section  VII. 

MACEDONIA. 

§  1.  PHILIP,  king  of  Macedon,  who  took  part 
in  all  the  views  and  projects  of  the  Greeks,  desirous 
of  raising  himself  to  grandeur  on  their  ruin,  made 
every  effort,  from  the  commencement  of  his  rei^n. 
to  create  a  marine,  in  order  to  secure  to  himself  a 
greater  preponderance  of  power.  With  this  prince,  a 
treaty  was  a  snare,  and  a  present,  a  declaration  of 
war.    Without  pretending  to  justify  all  the  means  he 
employed  to  obtain  the  ends  he  had  in  view,  it  can- 
not be  denied,  that  he  was  one  of  the  ablest  men  in 
the  art  of  government.    His  first  pretext  for  arming, 
was  to  expel  the  pirates,  who  had  become  insolent  by 
a  long  series  of  successful  depredations,  and  to  clear 
the  yEgean  and  Ionian  seas  of  these  marauders.  But 
he  himself  soon  exercised  the  same  infamous,  though 
lucrative  employment.    He  scoured  the  seas  with  his 
ships,  and  carried  offone  hundred  and  seventy  vessels, 
richly  laden,  the  booty  of  which  was  of  great  service 
to  him  in  prosecuting  the  war.    Philip  was  not  des- 
titute of  flatterers,   who,  confounding  success  with 
justice,  invented  reasons  to  prove  both  the  honour 
and  lawfulness  of  these  maritime  expeditions.    A  vi- 


Chap.  I.  OF  EUROPE.  41 

Death  of  Philip. — Projects  of  Alexander  the  Great. 

olcnt  death  arrested  him  in  the  midst  of  his  projects 
and  enterprises.  He  was  slain  at  the  time,  when, 
under  the  modest  and  specious  title  of 'generalissimo 
of  Greece,  he  was  preparing  to  fight  the  Persians, 
and  already  considered  himself  as  the  conqueror  of 
Asia,  and  the  ruler  of  the  sea.  Alexander  the  Great, 
who  succeeded  him,  inherited  both  his  ambition  and 
his  dominions.  He  entered  into  all  the  views  of  his 
father,  adopted  the  same  principles,  reigned  with 
more  splendor,  though  with  less  genius  and  address, 
availed  himself  of  the  glory  which  Philip  had  acquir- 
ed, and  formed  projects  of  his  own,  still  more  vast  and 
boundless.  Though  dazzled  with  the  rapidity  of  his  \ 
victories,  and  finding  every  where  new  food  for  his 
pride,  he  did  not  forget,  that  without  commerce, 
and  a  well  established  marine,  his  conquests  would 
prove  useless,  and  even  ruinous.  For  this  reason,  / 
having  destroyed  Tyre,  and  made  Carthage  tremble, 
he  laid  the  foundation  of  Alexandria,  as  the  capi- 
tal of  the  universal  monarchy  which  he  meditated  j 
and  to  serve  as  a  general  entrepot  for  the  commerce 
of  the  different  parts  of  the  world,  to  be  concentrated 
in  that  place.  He  intended  to  open  an  advan- 
tageous communication  between  India  and  Ethiopia, 
by  the  Red  Sea  and  the  Nile,  and  another  between 
Europe  and  Africa,  by  the  Mediterranean.  For  this 
purpose,  he  placed  the  new  capital  of  the  world  be- 
tween Tyre  and  Carthage,  that  it  might  draw  to  it- 
self the  commerce  of  both  cities. 
Vol.  I.  G 


42  THE  MARITIME  LAW        Part  I. 


Vast  phuis  of  Alexander ;  his  sudden  deatli. 

■g;-  — — ■ 

3.  It  is  said,  that  Alexander  had  resolved  to  em- 
bark on  the  coasts  of  Syria,  proceed  to  humble  Car- 
thage, and  to  subdue  Numidia  and  Mauritania;  that 
he  proposed,  afterwards,  to  pass  the  straits  of  Gibral- 
tar, and,  landing  in  Spain,  reduce  it  under  his  power; 
that  from  thence  he  intended  to  penetrate  into  Italy, 
to  depress  the  greatness  of  Rome,  against  which 
he  had  taken  offence,  and  then  to  return  into  Greece. 
Others  relate,  that  he  meant  to  double  the  Cape  of 
Good  Hope,  circumnavigate  y\frica,  and  re-enter  the 
Mediterranean.    He  caused  timber  to   be   cut   on 
Mount  Libanus,  for  the  construction  of  gallies  of  sev- 
en ranks  of  oars,  and  he  commanded  the  king  of 
Cyprus  to  furnish  beaks,  sails,  and  cordage,  for  his 
ships.     He  intended,  also,  to  enter  the  Euxine,  and 
to  sail  as  far  as  the  Palus  Meotis.    He  had  caused 
materials  to  be  prepared  for  equipping  a  fleet,  which 
he  designed  to  launch  on  the  Caspian   Sea;   but 
death  surprised  him  in  the  flower  of  his  age,  in  the 
midst  of  all  the  pleasing  and  brilliant  prospects,  which 
fortune  opened  to  his  view  :   with  him,  all  his  pro- 
jects terminated. (45)* 

Section  VIII. 
EGYPT. 
§  1 .  EGYPT,  in  its  geologocial  and  topographical 
circumstances,  presented  no  immediate  inducement 

(45)  Quintus  Curtius  in  vita  Akx.  Justin.  Ilistor. 

*  The  various,  extensive,  and  magnificent  schemes  of  this  ex- 
traordinary man,  are  elegantly  described  by  Dr.  llobertson,  in  his 
excellent  Ilislorical Disquisilion  concerning  India T. 


Chap.  I.  OF  EUROPE.  45 

Egj'pt  paid  no  attention  to  navigation  before  the  time  of  Scsostris. 


to  its  inhabitRnts,  to  make  navigation  their  chief  em- 
ployment. Surrounded,  on  almost  every  side,  with 
immense  rocks  of  granite  and  marble,  inundated  eve- 
ry year,  by  the  periodical  overflov^'ing  of  the  Nile, 
producing  only  a  few  small  trees,  this  comitry  was 
destitute  of  the  materials  suitable  for  building  of 
ships.  A  moral  power  contributed  no  less  to  es- 
trange the  Egyptians  from  nautical  pursuits.  Reli- 
gion, which,  in  that  country,  more  than  in  any  other, 
is  subservient  to  politics,  attached  a  kind  of  dishon- 
our to  the  occupation  of  a  mariner;  and  Typhon,  tho 
emblem  of  the  principle  of  evil,  and,  consequently, 
the  enemy  of  all  good,  was  also  the  god  of  the  sea. 
A  priest  believed  himself  defiled  by  the  more  touch 
of  a  seaman,  and,  for  that  reason,  strangers  were  de- 
clared impure. 

2.  From  the  combined  effect  of  all  these  causes, 
before  the  reign  of  Sesostris,  the  Egyptians,  who,  from 
the  natural  fertility  of  their  soil,  wanted  very  little 
from  other  nations,  shut  their  ports  against  strangers, 
and  treated  navigators  as  profligate  and  profane  per- 
sons. Time,  which  discovers  every  secret,  and  makes 
known,  at  once,  causes  and  their  effects,  opened  the 
eyes  of  the  great  monarch  who  reigned  in  Egypt 
1659  years  before  the  christian  era,  and  enabled  him 
to  discern  the  advantaircs  of  a  commerce  with  India. 
Sesostris,  at  length,  surmounted  all  the  difficulties 
which  popular  prejudices  opposed  to  the  establish- 
ment of  commerce  and  navigation.  He  took  ven- 
geance on  the  Erythreans,  who  had  rendered  them- 


44  THE  MARITIME  LAW        Part  L 

Enterpise  and  death  of  Sesostris. — Ptolemy  Lagiis. 

selves  formidable  on  the  Red  Sea  ;  armed  a  fleet  of 
four  hundred  ships  in  the  Gulf  of  Arabia;  made  him- 
self master  of  all  the  islands  of  the  Red  Sea,  even  as 
far  as  India,  and  arrived,  according  to  Herodotus, 
to  a  sea  which  was  innavigable,  on  account  of  its 
numerous  shallows.  After  the  death  of  Sesostris, 
the  ancient  prejudices  revived,  and  all  the  advantages 
his  country  had  derived  from  commerce  were  lost. 

The  conquests  of  Alexander,  were  divided,  after 
his  death,  among  his  lieutenants.  Egypt  fell  to  the 
share  of  Ptolemy,  son  of  Lagus,  who  was  succeeded 
by  twelve  of  his  family,  named  Ptolemy,  and  distin- 
guished from  each  other  by  their  surnames.  The 
first  king  of  Egypt,  of  an  elevated  and  enterpri- 
sing genius,  encouraged  the  establishment  of  Alex- 
andria, and  granted  to  that  city  all  the  rights  and  pri- 
vileges which  it  deserved  to  enjoy,  Ptolemy  opened 
again  the  long  interrupted  intercourse  with  India, 
and  the  facilities  he  granted  to  its  commerce,  joined 
to  the  immediate  hopes  of  gain,  attracted  to  Egypt 
the  most  respectable  merchants,  and  most  skilful  na- 
vigators. To  excite  still  more  the  spirit  of  com- 
merce in  his  dominions,  and,  at  the  same  time,  to 
prevent  other  nations  from  drawing  it  from  Egypt, 
he  laid  out  the  plan  of  a  magnificent  city  on  the  Red 
Sea,  where  he  might  himself  inspect  his  fleets,  and 
keep  up  the  necessary  intelligence  with  them. 

4.  This  grand  design,  thwarted  by  various  obsta- 
cles,   was  executed   after  his   death,  by  Ptolemy- 


Chop.  /.  OF  EUROPE.  45 


Ptolemy  Philadelphus,  promotes  and  protects  commerce  and  navigation. 


Philadelphus,  who  gave  to  the  city  the  name  of  his 
mother,  Berenice.  This  prince  maintained  two  large 
fleets,  one  in  the  Red  Sea,  the  other  in  the  Medi- 
terranean, to  restrain  pirates,  and  to  protect  maritime 
commerce  from  their  attacks.  The  expense  of  two 
such  establishments,  shews,  at  once,  his  naval  power, 
and  his  attention  to  whatever  might  facilitate  the  pro- 
gress of  commerce.  Philadelphus,  in  fact,  was  too  I  ^ 
good  a  politician  not  to  know  that  a  sovereign  at-  I 
tempts  in  vain  to  encourage  commerce,  if  he  does 
not  effectually  provide  for  its  protection  by  a  powerful 
navy.  His  ovi^n,  therefore,  was  in  the  most  iiourish- 
ing  state.  It  was,  doubtless,  to  make  known  how 
much  this  prince  had  done  to  promote  navigation, 
and  to'  transmit  to  posterity  a  durable  monument  of 
the  splendour  which  commerce  had  acquired  during 
his  reign,  that  Callicrates,  commander  of  the  royal 
fleets,  consecrated  to  Arsinoe,  the  wife  and  sister  of 
Ptolemy,  a  temple,  in  which  she  was  honoured 
under  the  name  of  Venus,  the  tutelary  divinity  of 
mariners. (46)  The  conquests  which  Philadelphus 
added  to  his  paternal  dominions,  rendered  his  em- 
pire unbounded  by  sea  and  land.  He  had,  accord- 
ing to  Theocritus,(47)  33,339  cities  subjected  to  him  ; 
so  that  Callimachus,  in  a  hymn,  made  in  honour  of 
the  Isle  of  Delos,  supposes,  that  Apollo  formerly 
predicted  the  greatness  of  this  prince,  and  that  he 


(4-6)  Athenaeus,  lib.  5,  p.  206. 
(47)  Theocritus,  Idyl.  17. 


46  THE  MARITIME  LAW        Part  I. 


Ptolemy  Evergetes. — Great  naval  enterprise  of  the  EgA'ptiaiis. 


would  extend  his  empire  from  the  rising  to  the  set- 
tins:  sun. 

5.  Ptolemy-Evergetes  pushed  his  conquests  be- 
yond those  of  his  father.  He  was  constantly  on  his 
guard  to  prevent  any  disturbance  in  the  navigation 
of  the  Arabian  sea,  where  he  exercised  exclusive 
dominion.  This  prince  was  the  last  of  the  family  of 
Lagus  who  has  merited  the  praises  of  the  historian. 
His  successors  are  described  as  addicted  only  to 
pleasure  and  luxury,  and  neglectful  of  commerce  and 
navigation. 

6.  Notwithstandincr  this  defect  \a  the  Ptolemies 
who  succeeded  Evergetes,  the  Egyptians  had  receiv- 
ed from  his  predecessors  too  strong  an  impulse  to- 
wards commerce,  to  abandon  it.  They  continued 
to  be  passionately  attached  to  navigation,  and  to  the 
discoveries  to  which  it  leads.  We  behold  them  on 
one  side,  traversing  every  part  of  the  Mediterranean, 
advancing  as  far  as  Cadiz,  penetrating  the  Palus-Me- 
otis ;  on  the  other,  visiting  the  gulfs  of  Arabia  and 
Persia,  passing  to  the  south  along  the  eastern  shore  of 
Africa,  to  the  Island  of  Madagascar,  running  the 
whole  coast  of  the  Indian  Ocean,  landing  at  the 
mouth  of  the  Indus,  surveying  the  coasts  of  Malabar 
and  Coromandel,  frequenting  the  Island  of  Taproba- 
na,*  ascending  the  Ganges,  and  pursuing  their  navi- 
gation even  to  Palibothra,f  the  capital  of  the  Indies. 

*  Ceylon,  t  AlLaliabad,  or  Patna — See  Rennell's  Memoir  and 
Map T. 


Chap.  I.  OF  EUROPE.  47 


Final  subjection  of  Eg}"pt  by  the  Romans,  and  tJic  ruin  of  its  marine. 

7.  The  reign  of  the  twelfth  Ptolemy,  surnamed 
Dionysius,  the  last  of  the  princes  of  that  name,  ha'^ 
derived  more  celebrity  from  the  war,  so  gloriously 
maintained  in  Alexandria  by  Cxsar,  than  from  the  ex- 
ploits and  great  actions  of  the  Egyptian  monarch. (47) 

8.  Cleopatra,  vv'ho  succeeded  her  brother,  cele- 
brated for  her  beauty,  her  luxury  and  gallantries,  had 
so  well  restored  the  Egyptian  marine,  and  repaired 
tlie  disasters  it  had  sufTcred  in  the  siege  of  Alexan- 
dria, that  she  was  in  a  situation  to  lend  considerable 
aid,  in  ships  and  maritime  forces,  to  Anthony,  in  the 
war  against  Augustus. (48)  It  was,  without  doubt, 
to  perpetuate  the  remembrance  of  the  maritime  powd- 
er of  this  princess,  that  many  of  her  medals  bear  on 
tlie  reverse,  vessels  and  prows  of  ships.  After  the 
battle  of  Actium,  and  the  tragic  death  of  this  unfor- 
tunate queen,  Egypt  w^as  reduced  to  a  Roman  prov- 
ince, and  its  maritime  commerce  passed  into  the 
hands  of  the  Romans,  to  whom  the  Egyptians  w^ere, 
for  a  long  time,  mere  agents  and  factors. 

9.  In  the  last  periods  of  its  history,  Egypt  did  not 
support  its  ancient  and  distinguished  character  j  but  it 
continued  to  improve,  in  a  high  degree,  in  industry 
and  manufactures.    The  revolutions  which  this  un- 

(4-7)  The  war  of  Aelxandria  exhibits  one  ofthe  most  interesting 
periods  of  ancient  history  :  the  description  of  it  in  the  commenta- 
rie?  of  Caesar,  is  always  read  with  pleasure.  Csesar  df  hdl.  civil. 
lib  3.  et  Hirtius  Pansa,  dc  hdlo  Akxand, 

(48)  Phitarch,  in  liiu  Anion. 


48  THE  MARITIME  LAW        Part  I. 


Revolutions  and  misfortunes  of  Egypt. — Carthage. 

happy  country  afterwards  experienced,  the  invasions 
of  the  Persians,  the  irruption  of  Amrou  the  Saracen 
general,  under  the  Caliph  Omar,  the  madness  of  the 
Crusades,  the  bad  government  of  the  Mamelukes, 
and  their  subjection  to  the  Turkish  yoke,  as  well  as 
the  reduction  of  Egypt  by  the  French,  have  not  yet 
been  sufficient  to  complete  its  destruction.  Egypt, 
with  a  capital  containing  four  hundred  thousand  in- 
habitants, sufficiently  proves,  that  it  still  retains  some 
portion  of  its  former  magnificence.  It  is  impossible 
to  calculate  what  will  be  the  consequences  of  its  res- 
toration, and  its  effects  on  the  nations  of  Europe,  or 
to  what  degree  of  splendour  she  would  reach,  if  her 
commerce,  arts,  sciences,  and  manufactures,  should 
be  re-established  in  the  hands  of  an  industrious  and 
magnanimous  people. (49) 

Section  IX. 

CARTHAGE. 

§  1.  ON  the  ruins  of  the  ancient  city  of  Tyre,  as- 
sisted by  the  knowledge  derived  from  the  Phoeni- 
cians, arose  Carthage,(50)  the  proud  rival  of  Rome, 

(49)  Letters  on  India,  in  relation  to  Egypt,  by  Taylor. 

(50)  According  to  the  most  generally  received  opinion,  130  years 
before  the  foundation  of  Rome,  Ehza,  or  Dido,  a  Phoenician  prin- 
cess, to  avoid  the  tyranny  of  her  brother  Pygmalion,  embarked  for 
Tyre,  and  landed  on  the  coast  of  Africa  with  the  companions  of 
her  flight.  The  beauty  of  the  country,  her  kind  reception  by  some 
ancient  Tyrians  settled  there,  and  by  the  Africans  in  the  vicinity, 
determined  her  to  fix  her  residence  in  that  place,  where  she  built 


Chap.  I.  OF  EUROPE.  49 

Maritime  despotism  of  Carthage. 

who,  for  a  long  time,  disputed  with  her  the  empire 
of  the  world.  Instigated  to  conquest  by  avarice,  less 
jealous  of  her  glory,  than  greedy  of  wealth,  this  re- 
public rendered  herself  mistress  of  all  the  coasts  of 
Africa,  Sicily,  and  Sardinia.  Ruling  with  tyrannic 
sway,  over  the  Mediterranean,  to  the  very  pillars 
of  Hercules,  she  ventured  to  prohibit  all  foreigners 
from  staying  longer  than  five  days  in  the  ports  of 
Sardinia,  allowing  them  to  purchase  only  what  was 
necessary  for  repairs,  or  for  religious  sacrifices :(5l) 
she  attempted  to  prevent  the  Romans  even  from 
washing  their  hands  in  the  sea  of  Sicily. 

the  city  of  Carthage.*  This  establishment  was  nothing  less  than 
a  conquest.  Dido  paid  a  tribute  for  tJie  land  granted  to  her  ;  and 
this  tribute  existed  for  several  centuries,  until  the  Carthaginians,  be- 
come more  powerful,  rendered,  in  their  turn,  the  same  people  tri- 
butary to  them. 

(51)  Polybius  Hist.  lib.  3.  ah.  3.  This  prohibition  is  contained 
in  tlie  first  treaty  between  tl>e  Romans  and  Carthaginians,  about 
23  years  before  the  invasion  of  Greece  by  Xerxes.  As  throwing 
some  light  on  the  state  ot  navigation  at  that  period,  it  may  not  be 
unacceptable  to  the  reader,  to  see  it  entire,  as  given  us  by  Polybius : 
"  Between  the  Romans  and  their  allies,  there  shall  be  peace  and 
alliance  upon  these  conditions.  Neither  the  Romans  nor  their 
allies  shall  sail  beyond  the  Fair  promontory,  (lying  on  the  north  side 
of  Carthage)  unless  compelled  by  bad  weather  or  an  enemy.  And, 
in  case  they  are  forced  beyond  it,  they  shall  not  be  allowed  to  take 
or  purchase  any  (liing,  except  what  is  barely  necessary  for  refitting 
their  vessels,  or  for  sacrifice  ;  and  they   shall  depart  in  five  days. 


*  See  Virgil's  ^Tlneid,  Ijook  1,  1.  340—367 
Vor.  I.  H 


50  THE  MARITIME  LAW        Part  I, 

Great  commerce  and  maritime  power  of  Carthage. 

2.  The  Carthaginians,  actuated  by  an  insatiable 
cupidity,  with  no  other  view  than  gain,  pursued 
wealth  wherever  it  could  be  found,  and  seized  on 
every  thing  they  thought  fit  to  take,  without  any  re- 
gard to  the  rights  of  property.  Their  maritime  pro- 
gress, rapid  and  extensive,  quickly  produced  luxury 
and  audacity,  which  usually  follow  in  the  train  of  suc- 
cess. About  the  close  of  the  second  Punic  war,  Car- 
thage reckoned  within  its  walls,  more  than  700,000 
inhabitants,  and  was  the  capital  of  more  than  300  ci- 
ties in  Africa.  She  had  sent  colonies  to  Spain,  Sici- 
ly, Sardinia,  and  the  Balearian  islands,  which  became 
populous  and  powerful.  Her  ships,  universally  re- 
spected, made,  every  day,  new  conquests.  It  is  even 
believed,  that  the  Carthaginians  penetrated  to  Ame- 
rica ;  a  discovery  which  their  distrustful  and  suspicious 

The  merchants  who  shall  offer  any  goods  to  sale  in  Sardinia,  or  any 
part  of  Africa,  shall  pay  no  customs,  but  only  the  usual  fees  to  the 
scribe  and  crier  ;  and  the  public  faith  shall  be  a  security  to  the  mer- 
chant for  whatever  he  shall  sell  in  the  presence  of  these  officers.  If 
any  of  the  Romans  land  in  that  part  of  Sicily  which  belongs  to  the 
Carthaginians,  they  shall  suffer  no  wrong  or  violence  in  any  thing. 
The  Carthaginians  shall  not  offer  any  injury  to  the  Ardeates,  Anti- 
ates.Laurentines,  Circoeans,  Tarracinians,  or  any  other  people  of  the 
Latins,  that  have  submitted  to  the  Roman  jurisdiction.  Nor  shall 
they  possess  themselves  of  any  city  of  the  Latins  thatis  not  subject 
to  the  Romans.  If  any  one  of  those  be  taken,  it  shall  be  delivered 
to  the  Romans  in  its  entire  slate.  The  Carthaginians  shall  not 
build  any  fortress  in  the  Latin  territory,  and  if  they  land  there  in  a 

hostile  manner,  they  shall  depart  before  night." Hampton's  Tram- 

lation T. 


Chap.  I.  OF  EUROPE.  51 

Jealousies  between  Rome  and  Carthage,  cause  of  the  first  Punic  war. 

policy   induced  them  unanimously  to  conceal  from 

other  nations.* 

3.  The  desire  of  securing  and  extending  their  con- 
quests in  Sicily,  the  necessity  of  humbling  Rome,  who 
regarded  them  as  haughty  rivals,  and  a  determmation 
to  maintain  their  maritime  and  commercial  empire, 
were  the  true  motives  which  led  to  the  first  Punic 
W'ar.  The  Romans  were,  no  doubt,  animated  by  si- 
milar motives.  It  is  also  probable,  that  the  possession 
of  Sicily  and  Sardinia,  which  would  naturally  be  the 
prize  of  the  victors,  had  a  powerful  influence  on  the 
resolution  taken  by  the  Roman  Senate,  to  enter  into 
war  with  the  Carthas^inians.  This  war  irave  rise  to 
many  naval  combats,  which  were  tollowed  by  a 
peace,  very  disadvantageous  to  Carthage. 

4.  Hamilcar  Barca,  who  was  charged  with  the  ne- 
gotiations, subscribed,  with  regret,  to  the  hard  con- 
ditions, which  the  distress  of  the  republic  compelled 
him  to  accept.  On  this  account,  he  felt  the  most  vio- 
lent indignation  against  the  Romans,  whom  he  ac- 
cused of  abusing  the  advantages  they  had  gained  ; 
but  his  hatred  was  exasperated  to  the  highest  pitch, 
when  the  Senate  not  content  with  the  very  hard 
terms  of  the  treaty,  refused  to  ratify  it,  until  others, 
!?till  more  offensive,  were  added.  Plamilcar  acquies- 
ced J  but  the  strong  resentment  which  he  cherished, 
must  be  regarded  as  one  of  the  principal  causes  oi: 

•  Tiiis  is  a  vague  conjee'. urc  restinjj  oti  no  authority.  See  Kcbertsoi'.'; 
History  of  America,  book  1 T. 


52  THE  MARITIME  LAW        Part  1. 


Second  Punic  war. — Successes  and  losses  of  Hannijjal. 

the  second  Panic  war,  since  it  induced  him  to  inspire 
the  young  Hannibal  with  the  deepest  hatred  against 
Rome.  Hannibal  commenced  hostilities  in  Spain ; 
but  the  Romans  had,  for  some  time,  authorised  prov- 
ocations towards  his  father,  and  brother-in-law  As- 
drubal,  that  in  some  degree  justified  the  Carthagini- 
ans in  coming  to  an  open  rupture.  With  the  olive 
branch  in  one  hand,  and  his  sword  in  the  other, 
Hannibal  opened  his  way  through  the  Pyrenees,  and 
across  the  summit  of  the  Alps.  After  the  battle  of 
Trebia,  so  advantageous  to  the  Carthaginians,  their 
leader  was  enabled  to  obtain  a  glorious  victory,  and 
to  triumph  over  his  enemies  at  Cannae. 

5.  The  Romans,  instructed  by  defeat,  confined 
themselves  to  carrying  on  a  war  of  stratagem,  cut  off 
his  supplies^  intercepted  the  contributions  he  had 
imposed,  and  cooled  the  ardour  of  the  recruits  he 
had  collected  from  every  quarter.  Hannibal  soon 
perceived  an  alarming  diminution  in  his  military 
chest,  and  in  his  legions.  He  beheld,  in  a  short  time, 
Spain,  Sicily,  and  Sardinia,  snatched  from  him.  The 
fortune  of  Scipio  finally  triumphed  over  that  of  Han- 
nibal, in  the  field  of  Zama.  Carthage,  tlius  vanquish- 
ed, received  law  from  a  conqueror,  who  knew  how 
to  make  the  most  of  the  advantages  she  had  gained. 
Rome  not  only  disarmed  her  rival,  by  obliging  her  to 
burn  all  her  fleets  in  which  her  principal  strength 
consisted,  but  imposed  heavy  contributions,  which 
were  exacted  with  the  utmost  rigour.  "  The  cause 
of  gods  and  men  at  length  prevailed,"  says  Livy. 


Chap.  I.  OF  EUROPE.  53 


Third  Punic  war. — Carthage  reduced  to  extremity. 


"  It  was  disputed  which  of  the  two  nations  had  bro- 
"  ken  the  peace  ;  the  event  of  the  war  decided  the 
"  question  like  an  impartial  judge,  and  gave  the  vic- 
"  tory  to  the  side  that  had  the  right. "(52) 

6.  The  third  Punic  war  may  be  regarded  as  the 
last  convulsions  of  a  victim,  pierced  by  the  fatal  knife, 
and  expiring  with  the  loss  of  blood.  The  Roman 
Senate,  uneasy,  and  jealous  of  the  reviving  strength 
of  its  enervated  rival,  resolved  on  her  final  destruc- 
tion. The  Cartliaginians,  alarmed  at  the  armed 
force  which  Rome  directed  towards  their  capital, 
yielded  to  hard  necessity,  and  sought  to  negotiate. 
The  consuls  who  commanded  the  naval  forces  in  per- 
son, made  such  extravagant  demands,  that  the  Cartha- 
ginians swore  that  tliey  would  meet  death  rather  than 
submit  to  such  intolerable  conditions.  This  resolu- 
tion gave  rise  to  a  war  that  lasted  two  years,  at  the 
end  of  which,  Carthage  was  closely  pressed,  and  at- 
tacked in  her  last  entrenchments.  The  Carthagini- 
ans tried  every  possible  means  which  could  be  devi- 

(52)  Viccrunt  dii,  liominesque  ;  el  id  de  quo  verbis  amhigchatur , 
liter  populus  Jitdus  rnpisset,  eventus  belli,  xelut  aqmis  judex,  unde 
jus  stabat  ei  victoriam  dedit.  Tit.  Liv.  Hist.  lib.  21.* 


*  This  mode  of  deciding  on  the  justice  or  injustice  of  a  war  by  its  success, 
seems  uinvordiy  of  an  imp.irtial  and  philosophic  historian.  Polybius,  more 
judicious,  fliscusses  tlie  various  causes,  and  seems  to  incline  to  the  opinion 
that  the  Cailliaginians  were  the  first  aggressors,  by  violating  tlie  article  of 
the  treaty  which  did  not  allow  them  to  attack  Sagtuitum,  or  to  pass  the 
Ibcrus T. 


34  THE  MARITIME  LAW        Part  L 


Final  destruction  of  Carthage. — Rome. 


sed  for  their  defence,  in  the  exhausted  state  to 
which  they  were  reduced.  With  old  timber,  and  rus- 
ty iron,  they  constructed  a  fleet  whicli  at  first  gave 
some  alarm  to  the  Romans,  but  was  soon  destroyed. 
They  defended  their  city  to  the  last,  disputing  the 
ground,  street  after  street,  to  the  very  citadel,  which 
they  set  on  fire,  and  threw  themselves  into  the  flames. 
We  might  almost  say  of  Carthage,  what  Cicero  some- 
where says  of  Sardanapalus,  that  in  his  death  he  per- 
formed the  first  act  of  courage  exhibited  during  his  life. 

7.  Thus  perished  Carthage,  about  750  years  after 
its  foundation.  The  Romans  built  a  new  city  on  a 
part  of  the  ancient  scite  3  but  it  acquired  celebrity 
only  during  the  reign  of  Augustus,  who  considered 
it  as  the  second  city  in  the  Roman  empire.  Maxen- 
tius  reduced  it  to  ashes.  It  regained  sufiicient  im- 
portance, in  the  time  of  Genseric,  king  of  the  Van- 
dals, to  hold  a  considerable  rank  among  the  cities  of 
Africa,  Belisarius  reannexed  it  to  the  Roman  Em^ 
pire.  About  the  end  of  the  seventh  century,  it  was 
so  completely  destroyed  by  the  Saracens,  that  not  a 
single  vestige  of  it  now  remains. 

Section  X. 

ROME. 

§  1.  DIONYSIUS  HALICARNASSUS,  Polyb- 

ius,  Livy,  and  other  historians,  agree  in  supposing 
that  the  Romans,  in  the  first  ages  of  the  republic, 
were  unacquainted  with  navigation,  and  that  they 
did  not  begin  to  build  vessels,  until  some  time  during 


Chap.  I.  OF  EUROPE.  55 


Fb'st  rise  of  the  Roman  marine. 


I 


the  war  with  the  Carthaginians,  when  the  cap- 
ture of  Agrigentuni  confirmed  them  in  their  design  to 
conquer  Sicily.  Polybius  mentions,  as  a  proof  ot  the 
great  genius  of  the  Romans,  the  boldness  with  which 
they  conceived  the  project  of  forming  a  marine  with- 
out having,  at  the  time,  any  knowledge  of  maritime 
affairs,  and  the  wonderful  success  which  crowned 
their  attempt. (53) 

2.  Though  the  marine  of  the  Romans  was  at  first 
very  imperfect,  it  became  the  means,  afterwards,  of 
extending  their  conquests,  and  enabled  them  to  car- 
ry their  arms  into  Sicily,  Sardinia,  Corsica,  Spain, 
Africa,  and  Asia.  Historians  do  not  mention  any 
maritime  expedition  of  the  Romans,  during  the 
reign  of  the  kings  of  Rome  ;  but  the  inference  which 
might  be  drawn  from  their  silence,  is  contradicted 
by  the  ancient  treaties  concluded  between  Rome  and 
Carthage,  quoted  entire  by  Polybius,  from  the  ori- 
ginals preserved,  in  his  time,  in  the  Capitol. (54)  By 
one  of  these  treaties,  concluded  under  the  first  con- 
suls of  the  republic,  and  in  the  same  year  with  the 
expulsion  of  the  kings,  it  is  evident,  that  from  that 

{5Z)  Polybius  Hist.  lib.  I. 
(5i)  Polvbius,  loc.cit.* 


*  See  ante,  p.  49,  nolc. — The  first  treaty  was  dated  in  the  cor.sulship  of 
L.  Junius  Brutus  and  M.  Horatius,  the  244t]i  3  car  of  Rome,  and  in  the 
first  jeju-  of  the  republic  ;  so  that  tlio  Romans  must  have  had  some  mari- 
time intercourse  with  otlier  nations  dui-big  the  reign  of  their  kinjrs T. 


56  THE  MARITIME  LAW        Part  I. 


Mistakes  of  liistorians  as  to  the  commencement  of  the  Roman  marine. 


time,  the  Romans  possessed  ships  distinguished  from 
those  of  their  allies,  and  of  their  own  subjects,  and 
that  these  could  not  have  been  mere  merchant-ships, 
since  vessels  of  a  different  kind  are  specified.  It  is 
mentioned  by  Livy,  that  in  the  year  of  Rome  416, 
which  is  74  years  before  the  first  Punic  w^ar,  the  Ro- 
mans having  seized  on  the  fleet  of  the  Antiates,  caus- 
ed six  of  their  gallies  to  be  brought  up  to  Rome,  and 
put  in  places  appropriated  for  the  preservation  and 
building  of  ships.(55) 

3.  Under  the  consulship  of  Caius  Junius  Brutus, 
and  Emilius  Barbulus,  the  tribune  Decius  Mus,  awa- 
kened in  the  Romans  an  attachment  to  a  marine,  by 
inducing  them  to  create  tw^o  magistrates,  called  Du- 
umvirs^ whose  duty  it  was  to  superintend  the  equip- 
ment of  fleets,  and  every  thing  which  concerned  na- 
vigation. The  institution  of  Duumvirs  took  place 
about  50  years  before  the  period  assigned  by  Polyb- 
ius  for  the  creation  of  the  Roman  marine.  Yet  it  is 
the  same  historian  who  gives  an  account  of  an  insult 
offered  to  the  Roman  fleet,  by  the  Tarentines,  which 
occasioned  the  war  against  Tarentum;  and  It  is  he 
who  informs  us  that  Valerius,  commander  of  the  Ro- 

(.55)  Livy  Hist.  lib.  8,  c.  1 4-.* 


*  The  words  of  Livy  are,  "  Naves  Antiatium  partivt  in  na'calia  Eomce 
subductjs,  isfc.  So  that  they  had  their  navalia,  or  docks,  for  building,  repair- 
ing^, and  preserving  sliips T. 


1 


Chap.  r.  OF  EUROPE.  57 


Encouragfcment  given  to  navigation  by  the  Romans. 


man  fleet,  filled  the  office  of  naval  Duumvir. [bQ)  The 
Punic  wars  rendered  it  necessary  for  the  Romans  to 
bestow  more  particular  attention  on  the  improvement 
of  their  marine,  which  before  had  no  fixed  establish- 
ment. Rome  began,  at  this  period,  to  encourage  the' 
nautical  art,  by  the  greatest  rewards.  The  consul 
Duillius,  after  having  entirely  defeated  the  Cartha- 
ginian fleet,  in  the  year  of  Rome,  491,  received  the 
thanks  of  the  nation,  by  an  extraordinary  triumph, 
which  was  the  first  naval  triumph  ever  seen  at 
Rome.  Coins  were  struck,  representing  Neptune 
with  his  trident,  borne  in  a  car.  The  honours  de- 
creed to  Duillius  were  rendered  in  some  measure 
permanent,  by  the  privilege  granted  to  him  by  the 
Senate,  of  being  always  preceded,  on  going  to  his 
house  at  night,  by  flambeaus,  to  light  him  on  his  way 
through  the  streets  of  Rome,  accompanied  with  mar- 
tial music. (57)  The  monument  erected  by  the  repub- 
lic on  this  occasion,  in  order  to  excite  emulation  by 
the  constant  exhibition  of  this  naval  victory,    ex- 


{56)  Polybius,  lib.  I. 

(57)  Cicero,  however,  finds  fault,  we  know  not  why,  with  this 
practice  of  Duillius,  which  he  considered  as  puerile  and  arrogant. 
In  his  I)ook.  de  Senectute,  addressed  to  Cato,  he  says,  Didllium  re-> 
deuntem  a  civiia  sc£pe  videbam  puer.  Delectahutur  crchrofunali  et  ti' 
bicina,  qua:  sihi  nuih  exemplo  privatus  sumpsetnt ;  tantum  licentics 
dahut  e^loria  !  Florus  was  of  the  same  opinion,  lib.  2,  c.  2,  §  10. 
Non  conlentus  wniiis  did  triumpho  per  vitam  omnem  tibi  a  cctna  redi' 
ret,  lucere  sihifunalia  prcccinere  sibi  tibias  jussit  quasi  quotidie  tri- 
nmpharet. 

Vol.  I.  I 


58  THE  MARITIME  LAW       Part  L 

Engagements  between  the  Roman  and  Carthaginian  fleets. 

isted  in  the  time  of  Pliny,  the  naturalist. (58)  It  was 
a  rostral  column,  with  inscriptions  suited  to  the  event, 
and  has  handed  down  to  posterity,  the  name  of  Duil- 
liuSj  and  the  gratitude  of  the  nation, 

4.  This  first  naval  action,  this  brilliant  victory 
over  a  nation  who  had  long  possessed  the  em- 
pire of  the  sea,  encouraged  the  Romans  to  carry 
the  war  into  Africa.  This  design  spread  terror 
among  the  Carthaginians,  who  always  dreaded  be- 
ing attacked  in  their  own  territory.  Regulus  was 
charged  with  the  execution  of  this  scheme,  to  pre- 
vent which,  Garthage  dispatched  to  sea  a  fleet  of 
350  ga:llies,  having  on  board  more  than  140,000 
men.  This  was  appearing^  says  Polybius,  in  a  man- 
ner suited  to  the  dignity  of  a  nation  who  had  begun 
to  exercise  dominion  over  the  sea. (59)  The  Cartha- 
ginian fleet,  in  spite  of  its  superiority  in  manoeuvring, 
the  lightness  of  its  ships,  and  all  the  advantages 
which  arise  from  experience  in  navigation,  did  not 
dismay  Regulus.  By  means  of  a  machine  for  grap- 
phng,  called  Corvus,  invented  by  DuilHus,  he  knew 
he  could  force  the  enemy  into  a  situation  to  be 
boarded,  which  was  all  he  Wanted.  There  were 
three  different  and  furious  actions  between  these 
large  fleets,  manned  by  a  vast  number  of  troops 
on  both  sides.  In  the  three  engagements,  the  ad- 
vantage remained  on  the  side  of  the  Romans,  who 
gained  a  complete  victory.    The  Carthaginians,  it  is 

(58)  Pliny  Hist.  Nat.  lib.  34,  cap.  7. 
{59)  Polybius  Hist.  lib.  I . 


CJwp.  I.  Of  EUROPE.  59 

•i  i  ■    ■       ,   —  '  ■■  'l ...  .,  J 

Naval  victories  of  the  Romans  over  the  Cartliaginiaiis. 
I  ■  ■  > 

true,  sunk  eighty  gallics  ;  but  the  Romans  took  six- 
ty-four, and  sunk  thirty  i  while  the  Carthaginians  did 
not  take  one. (60) 

b.  Such  was  the  first  essay  of  the  Roman  marine. 
The  next  year,  the  republic  sent  to  sea  one  hundred 
and  fifty  gallies*  under  Servius  and  Emilius.  The 
command  of  the  naval  armament  was  preferred 
to  that  of  the  land  forces.  The  Carthaginian 
fleet,  composed  of  two  hundred  gallies,  advanced 
ngainst  the  enemy.  The  Romans,  on  their  part,  met 
the  encounter,  as  soon  astliey  perceived  the  approach 
of  the  other  fleet,  and,  though  inferior  in  number,  at- 
tacked it  so  briskly,  and  with  such  superior  valour,  that 
it  hardly  seemed  a  battle  ;  they  put  them  entirely  to 
the  rout,  and  the  Carthaginians  lost  a  hundred  and 
fourteen  oallies.  The  consuls,  who  wished  to  return 
immediately  to  Rome,  to  enjoy  the  triumph  which 
awaited  them,  obstinately  kept  to  sea,  in  spite  of 
the  remonstrances  of  the  pilots,  who  foresaw  an  ap- 
proaching storm.  A  tempest  arose  with  such  tre- 
mendous violence,  that  out  of  three  hundred  and  six- 
ty-four gallies,  scarcely  eighty  were  saved  ;  the  rest 
were  wrecked,  or  stranded  on  the  coast.  Polybius 
remarks,  in  his  account  of  this  event,  that  history  fur- 
nished no  example  of  so  great  a  loss. (6 1 )  By  this  mis- 

(60)  Polybius  Hist.  lib.  I. 

(61)  Polybius,  lib.  1.  cli.  3. 

*  This  number  is  not  correct,  for  Polybius  says,  Uie  Romans  put 
vo  sea  with  a  fleet  of  350  ships ;  and  that  of  4-6+  ships,  only  80  es- 
caped the  storm.    The  number  of  the  Roman  fleet  added  to  the 


THE  MARITIME  LAW        Fart  I 


Losses  of  the  Romans. — They  build  a  new  fieet 
...i   --      ■■  •  ■  .      xii 

fortune  of  the  Romans,  Carthage  regained  the  mari- 
time superiority  she  had  lost.  She  omitted  no  efforts 
to  destroy  the  remnant  of  the  Roman  marine.  She 
sent  an  army  into  Sicily,  composed  of  veterans  and 
new  levies,  with  one  hundred  and  forty  elephants. 
Two  hundred  gallies  protected  the  operations  of  the 
land  forces,  and  insulted  the  enemy  wherever  they 
met  them. 

6.  The  Romans,  in  three  months,  built  a  new 
fieet  of  one  hundred  and  forty  sail,  an  effort  which 
Polybius  regards  as  almost  incredible. (62)  The  con- 
suls who  commanded,  were  joined,  in  their  course,  by 
the  remainder  of  their  former  marine,  which  increas- 
ed the  number  of  their  gallies  to  two  hundred  and 
twenty.*  With  these  forces  they  proceeded  against 
Palermo,  which  they  took  by  assault.  It  was  the 
most  valuable  place  the  Carthaginians  possessed  in 
Sicily.  But  the  inexperience  of  the  Romans  in  ma- 
noeuvring their  vessels,  cost  them  one  hundred  and 
fifty,  which  were  destroyed  by  a  violent  storm,  near 
Cape  Palinurus.  Rome,  almost  discouraged  by  so 
many  successive  disasters,  relinquished,  for  a  time, 
the  empire  of  the  sea,  and  confined  herself  to  expe- 
ditions on  land,  which  she  then  regarded  as  more 


ships  before  captured,  makes  that  of  4^4,  so  that  the  Roman  fleet 
was  superior  to  that  of  the  Carthaginians T. 


(62)  Polybius,  lib.  1.  ch.  3.* 


•  The  historian  states  the  number  of  the  new  fleet  to  be  220,  and  the 
remnant  of  the  old  fleet  which  joined  it,  made  the  whole  300  smI T. 


Chap.  I.  OF  EUROPE.  $1 

Losses  and  defeat  of  the  Romans- 

conducive  to  the  glory  and  majesty  of  the  republic, 
than  all  the  wealth  to  be  acquired  by  commerce. (63) 

7.  This  determination  was  of  short  continuance. 
The  Carthaginians  having  dispatched  a  fleet  to  take 
possession  of  Sicily,  the  Romans,  with  the  greatesl: 
expedition,  equipped  anotlier  to  oppose  this  invasion, 
which  so  deeply  wounded  their  national  pride. (64) 
This  fleet,  fitted  out  with  so  much  precipitation,  and 
at  great  expence,  was  unable  to  resist  the  Cartha- 
ginian forces,  and  was  destroyed  by  them  in  the  fa- 
mous battle  oi  Drepanumy  in  \Vhich  they  sunk  eighty 
gallies,  and  took  ninety-three.  The  consul  Claudi- 
us, who  commanded  the  Roman  fleet,  thought  him- 
self fortunate  to  bring  off  the  residue  in  safety.  This 
defeat  was  ascribed  to  his  misconduct,  and  he  was 
punished  by  the  loss  of  his  consulate.  The  Sen- 
ate not  disheartened,  equipped  a  new  fleet,  and  gave 
the  command  of  it  to  Lutatius,  distinguished  for  the 
treaty  which  terminated  the  first  Punic  war.  The  Ro- 
man fleet  attacked  and  beat  that  of  the  Carthagini- 
ans, sunk  fifty  of  their  ships,  and  captured  sixty.  This 
victory  put  an  end  to  a  long  and  bloody  war,  in  which 

(63)  Pobbius,  ihid.  "  Tiie  Romans,  after  such  heavy  and  re- 
peated losses,  though  their  ardour  was  not  abated,  yet  thought  it 
more  for  the  honour  and  glory  of  the  empire,  under  the  pressure  of 
such  great  evils,  wholly  to  abstain  from  maritime  expeditions." 

(6+)  Polybius,  i7;irf.  "As  soon  as  the  news  of  this  misfortune 
reached  Rome,  tliey  immediately  equipped  a  now  armament  and 
dispatched  it  to  Sicily." 


A52  THE  MARITIME  LAW        Parti. 


Triumph  of  the  Romans  over  tlie  Ciu-thaginians. 


the  two  republics  exhibited  a  mutual  hatred  far  ex- 
ceeding their  strength. (G5.)  It  continued  twenty- 
three  years  without  interruption,  and  the  Romans 
reaped  all  the  advantages  resulting  from  the  contest. 
The  peaceful  possession  of  Sicily,  Sardinia,  and  Cor- 
sica, was  confirmed  to  them  by  the  treaty  of  peace. 

S.  At  the  termination  of  the  second  Punic  war, 
Scipio,  conqueror  of  Hannibal  in  Africa,  granted 
peace  to  the  Carthaginians,  on  condition,  that  in  fu- 
ture they  should  keep  but  ten  ships,  and  that  all  the 
rest  should  be  delivered  up  to  the  Romans,  which 
was  carried  into  effect. (66)  Scipio,  on  his  return  to 
Rome,  after  receiving  the  honours  of  a  triumph,  gave 
public  thanks  to  the  Gods  who  had  granted  him 
such  a  splendid  victory.  He  erected  a  temple  to  the 
divinity  who  presides  over  storms,  for  having  snatch- 
ed him  and  his  fleet,  from  a  furious  tempest  in  the 
sea  of  Corsica,  on  their  return  from  Africa.  On  the 
temple  was  placed  the  following  inscription  : 

Te,  quoqus,  tempestas,  meritum  delubra  fatemur , 
Cum  pene  est  Coisis  obrutus  classis  aquis. 

9.  The  splendour  of  these  triumphs,  and  the  pub- 
lic homage  rendered  to  the  Gods,  the  extraordinary 
abundance  of  grain  and  other  commodities,  which, 
after  this  victory,  flow^ed  into  Rome,  and  the  advan- 
ta<»-e  of  possessing  the  islands  of  Sicily  and  Sardinia, 

(65)  Polybius,  he.  cit.  They  contended  with  more  animosity 
fhan  Strength. 

{66)  Livylib,  SO,  §37,  ei43. 


Cliap.  I.  or  EUROPE.         '  6.t 


Rapid  advancement  of  the  Roman  marine. 


inspired  the  Romans  with  the  strongest  attachraent 
to  a  marine. 

10.  From  this  period  Rome  so  improved  in  the 
science  of  navigation,  that  she  was  soon  in  a  con- 
dition to  chastise  the  Illyrians,  who  were  addicted  to 
piracy,  and  committed  depredations  on  the  ncigli- 
bouring  nations. (67)  She  also  compelled  Phihp, 
king  of  Macedon,  to  raise  the  siege  of  the  cities  of 
Oricum  and  Apollonia,  in  the  possession  of  the  Ro- 
mans on  the  coasts  of  Enirus  and  Macedonia,  and  to 
burn  a  part  o^  liis  fleet. (68)  Philip  was  not  restrain- 
ed by  this  first  check.  Some  years  after,  he  put  to 
sea  a  numerous  fleet,  once  more  to  try  his  strength 
with  the  Romans  ;  but  having  been  completely  van- 
quished, he  sued  for  peace,  which  he  obtained  on 
very  hard  terms,  among  others,  that  he  should  deliver 
up  all  his  covered  gallies  to  the  victors. (69)  Perseus, 
son  of  Philip,  being  joined  by  the  Illyrians,  wished 
also  to  try  the  fortune  of  a  battle  with  the  Romans, 
but  was  entirely  defeated  and  made  prisoner,  with 
his  three  sons,  and  Gentius,  king  of  Illyria.  These 
captives,  exhibited  to  the  view  of  the  Romans,  en- 
hanced the  splendour  of  the  trophies  of  the  victor, 
C.  Fulvius,  to  whom  the  honours  of  a  triumph  had 
been  decreed. (70) 

((S7)  Livy,  lib.  20.     Floras,  lib.  I,  cap.  5. 

(68)  Livy,  lib.  24,  §  40. 

(69)  Lib.  33,  §30. 

(70)  Livy,  lib.  45,  §  43.   Vclicius  Palerculu^  li''.  L  § 'V 


5*  THE  MARITIME  LAW        Part  I. 

Great  maritime  power  of  tlie  Romkns. 

11.  Antiochus  was  not  more  fortunate.  Having 
been  defeated  several  times,  he  v^^as  compelled,  by  a 
treaty  of  peace,  to  shut  himself  up  in  Syria,  to  aban- 
don to  the  Romans,  all  his  possessions  in  Asia,  and 
to  deliver  up  all  his  vessels  of  war,  excepting  ten 
brigantines,  to  which  number  he  was  limited.  He 
attempted  afterwards  to  re-establish  his  marine,  but 
the  Romans  set  fire  to  the  vessels  he  had  ordered  to 
be  built.(71)  The  Etolians,  the  Istrians,  and  Narbis, 
the  Spartan  usurper,  who  infested  the  Grecian  seas 
with  his  piracies,  suffered  the  same  fate. (72) 

12.  The  total  ruin  of  Carthage,  which  followed  the 
third  Punic  war,  subjected  all  Africa  to  the  Roman 
power.  This  province,  by  its  supplies  of  corn,  after- 
wards became  of  great  service  to  Rome.  The  burn- 
ing of  Corinth,  which  took  place  a  short  time  after, 
completed  the  subjection  of  Greece,  and  reduced  it  to 
a  servitude  rendered  more  gloomy  from  its  having  so 
long  been  accustomed  to  command.  Every  thing, 
at  that  period,  yielded  to  the  power  of  the  Roman 
republic.  Mithridates,  however,  who  dared  to  re- 
sist the  Roman  power,  at  first  with  adequate  courage, 
and  afterwards  by  artifice  and  fraud,  would  have 
made  Rome  tremble,  if  he  had  not  been  obliged  to 
contend  against  a  Sylla,  a  LucuUus,  and  a  Pompey, 

(7  1)  FlomsiZ/si.  lib.  2,  cap.  8,  §  12—18. 
(72)  Uvy,  lib.  35.  Polybius,  lib.  13,  in  excerpt. 


amp.  I.  OF  EUROPE.  65 

Conquests  of  tlie  Romans. — Destruction  of  tlie  pirates. 

■  ■  ■  '       J  ■  '     .  - 

to  whom  he  was  at  last  compelled  to  yield,  after  a 
contest  of  twenty  years.(73) 

13.  "WTiilc  Rome  was  enga*]jed  in  the  conquest  of 
Africa  and  Asia,  in  subduing  the  power  of  Jugurtha, 
king  of  Numidia,  of  Tigranes,  king  of  Arminia,  and 
in  quelling  domestic  troubles,  Cilicia  became  a  nur- 
sery of  pirates.  Formidable  by  their  depredations, 
they  kept  up  a  connexion  and  correspondence  with 
various  places,  to  facilitate  their  descents  on  the 
coast,  to  ravage  the  country,  put  the  chief  maritime 
towns  under  contribution,  and  to  rifle  the  treasures 
of  the  most  celebrated  temples.  The  Roman  people 
complained  loudly  of  the  dearness  of  provisions,  and 
the  necessaries  of  life,  which  in  their  passage  from 
Egypt,  Sicily  and  Sardinia,  were  intercepted  by  these 
pirates.  Pompey  was,  at  length,  ordered  with  a  nu- 
merous fleet,  to  put  an  end  to  a  war,  the  consequen- 
ces of  which  appeared  dangerous.  Success  attended 
the  talents  and  exertions  of  this  great  man.  He  soon 
crushed  these  robbers,  and,  prohibiting  them  from 
the  use  of  the  sea,  restored  liberty  and  safety  to  na- 
vigation.(74) 

14.  The  conquests  of  the  Romans  in  Africa  and 
Asia,  brought  immense  riches,  before  unknown  to 


(73)  Plutarch,  in  vita  St/llct,  Lucull.  et  Pomp. 

(74)  Plutarch,  in  Tita  Pomp.  Floras,  lib.  3,  c.6.  Veil.  Paterr. 
ib.  2,  §  31 — 32.  Cicero  pro  lege  Manilia. 

Vol.  I.  K 


m  THE  MARITIME  LAW        Pari  /. 

Increase  of  wealth,  luxury,  and  refinement,  among  the  Romans. 

them.  This  sudden  influx  of  wealth,  introduced  ex- 
cessive luxury  and  elegant  refinement,  which  per- 
vaded all  classes  of  society.  The  love  of  pleasure, 
pomp,  and  magnificence,  banished  the  ancient  se- 
verity of  manners.  The  nation,  become  more  rich,  po- 
lished and  voluptuous,  despising  the  humble  poverty 
of  their  ancestors,  imagined  a  thousand  wants,  which 
gradually  undermined  their  former  ideas  of  virtue.  (7  5) 

15'.  The  Romans,  from  that  period,  goaded  with 
the  lust  of  conquest,  which  promised  them  new 
riches,  were  not  content  with  having  obtained  the 
empire  of  the  Mediterranean.  They  aspired  to  the 
dominion  of  a  new  sea,  and  to  the  acquisition  of  un- 
known regions.  While  Caesar  held  the  government 
of  Gaul,  the  Romans  ventured  to  navigate  the  Atlan- 
tic ocean,  and  for  this  purpose,  they  caused  ships 
to  be  constructed  stronger  than  any  they  had  before 
possessed. 

16.  The  Venetes,  inhabitants  of  Vannes,  were 
jKDwerful  at  sea,  and  carried  on  a  commerce  with 
Great-Britain.  They  ruled  over  the  adjacent  coasts, 
and  exacted  tribute  from  the  inhabitants.  They  as- 
sassinated the  ambassadors  sent  by  Caesar  to  request 


(75)  Quippe  remoto  Carlhaginis  metut  suhlataque  imperii  aniula, 
non  gradu,  sed prcecipiti  cursu  a  virtute  descitvin,  ad  vitia  transcur- 
sum ;  vetus  disciplina  deserta,  nova  inducia.  Veil.  Paterc.  lib.  2, 
cap.  1.  Paulatim  discessum  ad  delinimenta  victor um,  balnea,  et  con- 
viviorum  elegantiam,  idque  apud  imperitos  humanitas  •cocatvr.  Taci- 
tus Annal.  lib.  2, 


Chap.  I.  OF  EUROPE.  67 


Invasion  of  England..— Victories  and  death  of  Cisar. 

their  alliance,  and  he  punished  their  barbarity,  by- 
vanquishing  them  in  a  sea-fight. (76)  After  this  vic- 
tory, he  resolved  to  pass  over  to  England,  a  country 
unknown  to  the  Romans,  and  even  to  the  Gauls,  who 
had  barely  touched  on  its  coasts,  to  purchase  some 
articles  of  which  they  stood  in  need.  Genius  and 
courage  were  the  companions  of  Caesar  in  this  bold 
and  hazardous  enterprise  -,  and  he  was  fortunate 
enough,  notwithstanding  the  accidents  he  encoun- 
tered, to  make  good  his  descent  upon  England,  and 
to  compel  a  people,  ferocious  in  their  manners,  and 
fanatics  for  hberty,  to  pay  tribute  to  the  Romans. 

17.  The  additional  knowledge  in  marine  affairs, 
which  Caesar  had  acquired  among  the  Gauls,  was 
of  great  service  to  him  daring  the  civil  wars  that 
called  him  to  Italy.  The  courage  and  celerity  with 
which  he  performed  all  his  maritime  expeditions,  en- 
sured him  the  defeat  of  Pompey,  and  the  submission 
of  Cleopatra.  He  returned  to  Rome,  where  the 
honours  of  a  triumph  were  decreed  to  him,  and 
where  he  finished  the  enslaving  of  his  country,  by 
making  himself  absolute  master.  When  Caesar 
was  preparing  to  put  the  Roman  marine  in  a  more 
flourishing  condition,  he  fell  beneath  the  strokes  of 
assassins,  in  the  midst  of  the  senate. (77) 

1 8.  After  the  tragic  death  of  this  hero,  Augustus, 
though  inexperienced  in  the  art  of  w  ar,  and  naval 

(76)  Comment.  Caesar,  lib.  3,  §2. 

(77)  Plutarch,  rita  Casor. 


6«  THE  MARITIME  LAW        Part  L 


Judicious  ettablishment  of  the  Roman  marine. 

affairs,  knew  how  to  choose  able  generals  for  the  land 
and  sea  service,  by  the  aid  of  whose  judgment  and  ex- 
perience, he  gained  many  victories.    He  began  by 
entirely  destroying  the  naval  forces  of  the  younger 
Pompey,  who  endeavoured,  in  vain,  to  support  the 
name  oi  Greats  so  justly  acquired  by  his  father.  The 
famous  battle  of  Actium  placed  at  his  discretion  the 
rival  whom  he  most  feared. (78)    He  knew  how  to 
profit  by  this  great  victory,  the  effects  of  which  ena- 
bled him  to  establish  a  system  of  marine,  that  lasted 
during  the  reigns  of  several  of  his  imperial  successors. 
It  consisted  in  having  three  grand  divisions  of  his  na- 
val forces  well  maintained  :  One  of  them  at  Frejus, 
in  Narbonese  Gaul,  to  keep  in  awe  the  coasts  of 
Spain,  and  that  part  of  Languedoc  and  Provence 
which  is  washed  by  the  Mediterranean ;  another  at 
Cape  Misene,  to  protect  the  navigation  of  the  lower, 
or  Etrurian  sea,  of  the  islands  of  Sicily,  Sardinia,  and 
Corsica  ;  the  third  at  Ravenna,  to  secure  the  naviga- 
tion of  the  upper,  or  Adriatic  sea.     Besides  these 
squadrons,  he  had  at  Misene  and  Ravenna,  a  consid- 
erable number  of  soldiers  called  Classiarii,  who  were 
constantly  exercised  for  maritime  warfare,  and  were 

(78)  Octavius,  after  the  defeat  of  Anthony,  remained  alone,  and 
having  no  longer  a  competitor,  he  was  not  slow  in  becoming  mas- 
ter of  a  republic,  which,  by  the  various  shocks  it  had  received, 
was  unable  to  prevent  it.  With  him  began  the  Roman  empire, 
which  he  swayed  under  the  name  of  Augustus.  In  changing  his 
name,  he  appears  to  have  changed  his  character.  Octavius  was 
cruel  and  brave.  Augustus  was  humane,  and  extremely  prudent 
in  danger. 


Chap.  L  OF  EUROPE. 


Voyage*  and  diBcoveries  during  the  xeign  of  Auffustiis. 


always  ready  to  embark  in  the  sea  service.(79)  Au- 
gustus, also  equipped  vessels  to  make  new  discoveries 
on  the  coast  of  vVtrica  towards  the  equator  ;  he  sent 
some  to  survey  the  coasts  of  Europe,  as  far  as  the 
frontiers  oftheCimbric  Chersoncsus  ;  and  ordered 
others,  called  Lusoricc,  to  ascend  the  great  rivers 
whose  mouths  were  known. (80) 

19.  The  Romans  had  never  undertaken  so  many 
perilous  and  important  voyages,  as  during  the  reign 
of  Augustus.  It  is  to  this  period  that  Venus  alludes, 
when,  in  the  iEneid,  she  remonstrates  w^ith  Jupiter, 
who  had  promised  her  the  empire  of  the  sea  and  the 
Jand  for  the  descendants  of  the  Trojans. (81)     But 

(79)  Pvimores  Classiariorum  Misnensium  labefactare  connixa  est. 
Tacit,  anml.  15,  cap.  51.  The  following  inscription  is  found 
on  an  ancient  marble:  MIL.  CL.  PR.  R.  that  is.  Miles  Classis 
frcvtoria:  Raiemiatis. 

(SO)  Vegetius,  de  re  navali.  lib.  4.  Schoeffcr,  de  militia  navali. 
Jib.  2,  cap.  3. 

(81)  Alloquitur  Venus  :  O  qui  res  hominumque  deumqne 
jEternis  regis  imperils,  et  fulmine  terres, 
Quid  mens  Jlineas,  in  le  committere  tnntum 
Quid  Troes  potuere  ?  Quibus  tot  J'unera  passis, 
Cuncius  ob  Italiam  terrarum  clauditur  orbis  ? 
Certe  liinc  Romanos  olim  voheniibus  antus 
Hine  fore  ductores  revocato  a  sanguine  Teucri, 
Qui  mare,  qui  terras  omni  ditione  ienerent, 
PoHicitus :  qua  te  genitor  sententia  vertit  ? 

Virgil  iEneid,  lib.  J,  v.  2:^0. 

Oh  thou  !  whose  sacred  and  eternal  sway, 
Aw'd  by  thy  thunders^  men  and  Gods  obey  ; 


70  THE  MARITIME  LAAV        Parti, 


The  successors  of  Augustus  neglect  tlxe  marine. 


when  Cassandra,  the  daughter  of  Priam,  in  Lvco- 
phron,*  made  a  similar  prediction,  it  must  be  under- 
stood of  a  period  long  anterior  to  Augustus.  These 
predictions  might  be  taken  for  exaggerations,  if  Dio- 
nysius  Halicarnassus,(82)  in  speaking  of  the  trans- 
actions of  his  time,  had  not  remarked,  that  Rome  was 
the  mistress  of  the  sea,  not  only  of  that  within  the 
pillars  of  Hercules,  but  of  the  whole  navigable 
ocean. 

20.  After  the  death  of  Augustus,  most  of  the  em- 
perors who  succeeded  him,  by  birth-right,  by  fraud, 
by  favour,  or  by  means  of  revolted  legions,  retained 
no  partiality  for  the  marine,  and  it  was  gradually 
abandoned.  History  mentions  only  some  hazardous 
expeditions,  in  which  whim  and  caprice  were  more 


What  have  mj  poor,  exhausted  Trojans  done  ? 

Or  what,  alas !  my  dear,  unhappy  son  ? 

Still  for  the  sake  of  Italy,  deny'd 

All  other  regions,  all  the  world  beside  ? 

Sure,  once  you  promis'd,  that  a  race  divine 

Of  Roman  chiefs  should  spring  from  Teucer's  line  ; 

The  world  in  future  ages  to  command. 

And  in  their  empire  grasp  the  sea  and  land. 

Pitt's  Translation. 

*  A  Greek  poet  of  Chalcis,  who  lived  in  the  time  of  Ptolemy 
Philadelphus.  None  of  his  compositions  remain,  except  a  poem 
entitled  Cassandra,  which  contains  the  prophecies  supposed  to  be 
uttered  by  the  daughter  of  Priam,  during  the  Trojan  war.  He  is 
thus  mentioned  by  Statins.  Sylv.  lib,  5,  line  157  : 

Carmina  Battiados  latebrasque  Lycophronis  atri T. 

(82)  Dionysius  Halicarn.  lib.  J. 


Chap.  I.  OF  EUROPE.  71 

The  naval  exploits  of  Tiberius,  ridiculous. 

conspicuous  than  true  courage,  or  a  just  ambition 
to  support  the  dignity  of  the  maritime  empire,  which 
the  Romans  had  acquired  with  so  much  trouble, 
and  so  many  sacrifices. 

21.  Tiberius,  whose  ideas  were  wholly  absorbed 
m  vice  and  debauchery,  possessed  no  other  fleets 
than  those  created  by  Augustus,  and  which  he  suf- 
fered to  decay. (83)  Caligula,  imitating  the  folly  of 
Xerxes,  as  a  great  maritime  exploit,  threw  a  magni- 
ficent bridge  over  an  arm  of  the  sea,  which  separates 
Baice  from  Puteoli.  He  rode  over  it,  dressed  in  a 
warlike  habit,  and  the  next  day  caused  the  honours 
of  a  naval  triumph  to  be  decreed  to  him,  which  he 
could  adorn  only  with  cockle-shells  collected  on  the 
Baiavian  coast,  at  the  time  of  his  expedition  for  the 
conquestoi  Britain,  anexpedition  stamped  with  equal 
folly. (»4)  Some  ships  were  built  by  order  of  this 
prince,  but  they  were  designed  not  so  much  for  real 
service,  as  for  the  purpose  of  luxury,  and  absurd 
magnificence.  In  a  vessel  made  of  cedar,  its  stern 
decked  with  jewels,  and  furnished  with  porticoes, 
gardens,  and  baths,  he  sailed  along  the  coast  of 
Italy,  to  the  sound  of  melodious  instruments. (85) 


(83)  Suetonius,  vita  August,  et  Tiberi.    Tacitus  anna/,  lib.  4. 
(81-)  Suetonius,  vita  Calig.  §  19. 
(85)  Suetonius,  vita  Calig.  §  37. 


72  THE  MARITIME  LAW        Part  I. 

Naval  triumph  of  Claudius. — Vespasian. 

22.  Claudius,  though  of  slender  merit,  was  not 
less  ambitious  of  the  honours  of  a  triumph.  For  this 
purpose,  he  dispatched  a  considerable  fleet  under  the 
command  of  Plotius,  a  Roman  senator,  to  make  a 
descent  on  England.  Having  met  with  success, 
Claudius  proceeded  to  England,  to  take  possession 
of  the  country  in  person,  and  he  returned  afterwards 
to  Rome,  where  he  enjoyed  a  splendid  triumph,  and 
acquired  the  surname  of  Brittannicus,  which  the 
senate  had  the  meanness  to  confer  upon  him.  He 
placed  a  naval  crown  of  gold  on  his  palace,  and 
on  the  prow  of  the  ship  in  which  he  sailed. (36) 
Nero,  after  embellishing  the  harbour,  constructed 
by  his  predecessor  at  the  mouth  of  the  Nile,  engaged 
in  no  maritime  enterprise,  except  to  cause  dust  to  be 
brought  from  Alexandria,  for  the  use  of  the  wrestlers, 
and  in  which  to  bury  the  victims  of  his  atrocities.  (87) 
Galba  and  Otho,  who  both  suffered  the  same  fate, 
were  scarcely  seated  on  the  throne,  before  they 
were  hurled  from  it,  and  had  no  time  to  attend 
to  a  marine.  Vitellius,  who  succeeded  them,  had  a 
fleet  for  his  defence  j  but  by  the  influence  of  Bassus, 
its  commander,  it  declared,  afterwards  in  favour  of 
Vespasian,  at  that  time  its  true  sovereign. (88)  Ves- 
pasian, on  his  return  to  Rome,  after  his  expedi- 
tion, felt  so  vain  of  every  thing  he  performed,  that 
he  had  a  medal  struck  in  honour  of  himself,  on  the 

(86)  Sueton.  vita  Claud.  §  17,  18,  19. 

(87)  Sueton.  vita  J^ero.    Tacit,  annal.  lib.  14-. 

(88)  Tacit.   Hist.  lib.  3,  §  12.    Sueton.  lib.  7.  §  8. 


Chap.  L  OF  EUROPE.  73 


Trajan  revives  the  maritime  power  of  the  Romans. 


verse  of  which,  he  was  represented  under  the  figure 
of  Neptune,  having  his  right  foot  on  a  globe,  and 
holding  in  his  right  hand  the  end  of  a  ship's  prow, 
and  in  his  left,  a  trident,  with  this  legend,  Xeptuno 
Reduci.  Titus,  who  had  taken  part  in  the  expedi- 
tions of  his  father,  solely  occupied  with  the  care  of 
rendering  the  people  happy  by  his  beneficence,  en- 
tirely neglected  the  marine,  as  did  his  successors, 
Domitian  and  Nerva. 

23.  Trajan,  seated  on  the  imperial  throne,  revived 
the  ancient  maritime  glory  of  the  Romans.  He  con- 
structed a  harbour  at  Cejitumcelli,  now  called  C/r^/Y/'a- 
Vecchiaj  defended  by  a  castle  erected  in  the  sea. 
This  work  appeared  to  be  so  advantageous  and 
convenient  for  shipping,  that  the  remembrance  o  f 
it  was  consecrated  by  a  medal,  representing  a  port 
adorned  with  different  edifices,  in  the  midst  of 
which  appeared  the  imperial  galley  surrrounded  by- 
others,  with  these  words,  Poriitm  Trajaiii,  S.  C. 
Trajan  also  built,  at  his  own  expence,  a  magnificent 
harbour  at  Ancona,  to  open  a  communication  from 
Italy  with  the  Adriatic  sea.  The  senate  and  people 
of  Rome,  desirous  of  preserving  the  memory  of 
this  useful  work,  consecrated  it  by  an  inscription, 
formerly  to  be  seen  in  that  harbour,  and  which 
has  been  ])rer,erved  by  Onuphrus.  The  victories 
gained  by  Trajan  over  the  Persians,  and  various  other 
nations,  made  so  much  noise,  in  the  world,  that 
many  states,   and,  among  others,  the  Indians,  sent 

Vol..  T.  K 


74  THE  MARITIME  LAW        Part  I. 

Adrian,  and  his  successors,  neglect  the  Roman  marine. 

deputies  to  him.  Eusebius,  in  his  Chronicles,  (an. 
2108)  mentions  that  this  prince  established  a  fleet  on 
the  Red  sea,  for  the  purpose  of  ravaging  the  coast 
of  India ;  in  mari  ruhro  classem  instituit,  ut  per  earn 
India, fines  vastarent.  Scaliger,  however,  on  the  au- 
thority of  Dion,  asserts  tliat  this  project  was  never 
carried  into  effect.  It  is  highly  probable,  that  the 
fear  which  the  Indians  felt  of  his  power,  induced 
them  to  seek  his  friendship.  Adrian,  who  succeeded 
him,  made  no  use  of  the  fleets  left  by  his  predecessor, 
except  for  excursions  of  pleasure  or  convenience.  He 
visiied  England,  Sicily,  Sardinia,  and  Africa,  for  no 
other  purpose  than  to  converse  with  men  of  learning, 
whose  praises  he  was  ambitious  to  obtain. 

24.  The  succeeding  emperors  did  nothing  to  en- 
courage the  marine  ;  but,  though  reduced,  it  still  pre- 
served to  the  Romans,  their  maritime  empire,  and,  it 
was  under  that  title,  that  Pertinax  remitted  the  trib- 
ute which  these  tyrants  had  imposed  on  the  seas. (89) 

25.  The  reigns  of  the  emperors,  who  succeeded 
one  another  so  rapidly  towards  the  decline  of  the  em- 
pire, furnish  the  historian  with  no  remarkable  cir- 
cumstance relative  to  the  marine.  Instead  of  aug- 
menting, or,  at  least,  maintaining  it  on  its  ancient  foot- 
ing, they  suffered  it  to  decay  and  fall  to  ruin;  so  that 
when  the  seat  of  the  empire  was  transferred  to  Con- 

(89)  Stypman.jws  maratim;\izxi  l,cap.  6,  §  \C^- 


Cliap.  I.  OF  EUROPE. 


Progress  of  the  bai-barians.— Destruction  of  the  Roman  empire. 


stantinople,  the  emperors  beheld  themselves  threat- 
ened by  the  fleets  of  nations,  issuing  from  the  neigh- 
bouring countries  of  Thrace,  and  the  vicinity  of  the 
Palus  Meotis.  The  Goths  and  Bulgarians,  notwith- 
standing the  naval  victories  of  Belisarius  and  Narses, 
spread  terror  in  every  quarter.  The  Saracens  alone, 
dared  to  present  themselves  before  this  new  capital 
of  the  world,  and  would  have  taken  it,  had  not  their 
numerous  fleet  been  burnt  by  the  Greek  fires,  an  in- 
fernal contrivance,  which  the  timid  and  dastardly  be- 
iieged,  first  put  into  operation. (90) 

26.  The  total  destruction  of  the  empire  of  the  Cae- 
sars, was  already  written  in  the  book  of  fate.  It  pass- 
ed into  the  hands  of  the  Ottomans,  whom  the  Ro- 
mans saw  rise  into  existence  as  a  nation,  and  who 
first  made  themselves  known  by  soliciting  their 
friendship  as  a  favour.    They  beheld  this  power  in- 

(90)  The  Greek  fire  is  a  Iioriid  compound  of  pitch,  sulphur,  and 
bitumen,  which,  instead  u(  being  exlir.guished  by  water,  burns  in 
it  with  more  violence.  Callinicus,  a  native  of  Heliopolis  in  Egypt, 
was  the  inventor  of  it.  The  discovery  was  kept  among  the  secrets 
of  the  empire.  Constantine  Forphyrogenitus,  in  Iiis  instructions 
drawn  up  for  his  son,  for  the  administration  of  the  stale,  tells  him, 
"  When  the  barbarians  sliail  demand  the  Greek  lire,  give  for  an- 
swer, that  the  angel  who  brought  it  from  heaven,  forbade  its  being- 
communicated  to  strangers,  and  that  those  of  our  own  people  who 
dared  to  give  it  to  otiiers,  had  been  struck,  with  lightning  on  enter- 
ing the  temples."* 


*  Sec  Gibbon's  n^rline  and  Tx^,  ch.  52 T. 


76 


THE  MARITIME  LAW         Part  I. 


Modern  maritime  states. — Venice. 


crease,  extend,  and  grow  rich  with  the  spoils  of  the 
Roman  people,  without  imagining  that  it  was  des- 
tined, at  a  future  day,  to  extinguish  their  name  in  the 
same  manner  as  so  many  others  had  been  swallowed 
up  in  that  of  Rome. 


ARTICLE  III. 

Of  the  Modern  States  who  have  claimed  the  empire  of 
the  Sea,  prior  to  the  discovery  of  the  New  JVorld. 

MODERN  History,  also,  affords  examples  of  the 
inordinate  claims  of  certain  European  powers,  to  the 
empire  of  the  sea,  and  whose  conduct  in  this  respect, 
exhibits  a  striking  contrast  to  the  moderation  of  other 
nations,  who  acknowledge  the  imprescriptible  lav.'S 
of  nature,  and  the  vanity  of  such  pretensions. 

Section  I. 

VENICE. 

§  1.  WHILE  the  Roman  empire  was  crumbling 
to  pieces  in  the  hands  of  its  barbarous  invaders,  on 
the  western  shore  of  the  Adriatic,  over  which  it  was 
destined  to  ru]e,(91)  a  new  city  rose  in  splendour 


(91)  Sannazarius,  a  celebrated  poet,  has  described,  in  beautiful 
verse,  the  magnificence  and  maritime  sovereignty  of  Venice  : 
"  Viderat  adriacis  Venetam  Neptunus  in  undis 
■  Stare  urbem,  et  toto  ponerejuja  mari. 
Nuncmihi  Tarpeias  quumwnvis,  Jupiter,  arccs 

Ohjice,  et  ilia  tui  mama  inartis,  ait  ; 
Si  Tiberim  pelago  prefers,  urbem  aspice  utramque, 
lllam  homines  dicas,  banc  potuisse  Decs." 


Chap.  /.  OF  EUROPE.  77 


Rapid  giowtli  of  the  Venetian  marine. — The  crusades. 


from  the  bosom  of  the  waves.  The  maritime  power 
of  Venice  was  coeval  with  her  birth,  and  rapidJy 
grew  into  maturity  and  strength.  After  subduing 
the  Istrian  and  Dalmatian  pirates,  she  boldly  attack- 
ed the  Normans  and  Saracens,  and  vanquished  them 
in  a  naval  battle.  She  triumphed,  afterwards,  over 
the  Hungarians,  and  subjected  the  Naventines,  who 
infested  the  Adriatic  gulf  with  their  piracies.  These 
first  brilliant  e^.says,  gained  her  the  great  reputation 
which  her  marine  afterwards  enjoyed. 

'J.  The  crusades  soon  furnished  an  excellent  op- 
portunity for  Venice  to  advance  her  glory.  The  chris- 
tian princes  having  confederated  in  1099,  to  deliver 
Palestine  from  the  oppression  of  the  Mussulmen, 
commenced  tlicir  career  by  signal  victories  over  the 
infidels,  and  by  taking  the  cities  of  Nice  and  Anti- 
och.  The  Venetians,  invited  to  the  assistance  of  the 
crusaders,  arrived  in  the  seas  of  Asia  Minor,  with  a 
fleet  of  two  hundred  sail,  under  the  command  of 
Henry  Contarini,  and  Michael  Vitalis,  son  of  the 
doge.  Their  first  operation  was  to  take  Smyrna. 
They  afterwards  seized  on  Joppa,  and,  keeping  along 
the  borders  of  Palestine,  they  aided  the  French  in 
the  capture  of  x\skalon,  and  other  places  on  that 
coast. 

3.  The  affairs  of  the  christians  in  the  Holy  Land, 
under  Count  Baldwin,  falling  into  disorder,  they  im- 
plored new  succours  fVom  the  Venetians.    Venice 


78  THE  MARITIME  EAW       Part  I. 


Maritime  power  of  the  Venetians. — Their  naval  victories. 
■ST  ,     ,  .  ,     ■  ■      ■   ■■  ■  -Li:a 

soon  equipped  a  considerable  armament,  and  entrust- 
ed it  to  the  command  of  Dominichus  Michieli, 
the  doge  ;  who,  having  surprised  the  Ottomans, 
while  they  were  besieging  Joppa,  by  sea  and  land, 
made  a  dreadful  carnage  among  them,  carried  off  a 
number  of  their  vessels,  dispersed  the  rest,  and  com- 
pelled them  to  abandon  their  enterprise.  After  this 
expedition,  Michieli  directed  his  victorious  fleet  to 
the  coast  of  Tyre.  This  city,  which  so  wearied  the 
valour  of  Alexander  the  Great,  and  disheartened 
that  of  Baldwin,  could  not  hold  out  against  the  skill 
and  courage  of  the  Venetians.  They  laid  siege  to 
it  by  sea,  and  took  it. 

4.  The  preponderance  acquired  by  the  Venetians 
over  the  Adriatic  sea,  inconsequence  of  along  series 
of  victories  and  brilliant  actions,  gained  them  such 
high  consideration  and  respect,  that  in  1177,  they 
took  advantage  of  the  enthusiasm  of  Pope  Alexander 
III,  to  obtain  from  him  a  grant  of  the  sovereignty  of 
the  sea.  The  Pope,  persecuted  by  the  Emperor, 
Frederick  Barbarossa,  took  refuge  in  Venice,  where 
he  was  received  with  the  honours  due  to  his  dignity. 
The  Emperor,  wishing  to  punish  the  Venetians  for 
their  partiality,  sent  his  son  Otho  against  them,  with 
a  fleet  of  75  gallies.  The  doge,  Sebastian  Ziani, 
met  the  prince  with  a  fleet  of  30  gallies.  Notwith- 
standing this  inequality  of  forces,  he  engaged  the 
enemy  on  the  coast  of  Istria,  entirely  defeated  the 
imperial  fleet,  took  48  gallies,  and  brought  Otho  a 
prisoner  to  Venice, 


Vhap.  I.  OF  EUROPE.  79 

Tlie  pope  confers  on  the  Vcncthins  the  sovereignty  of  t!\e  Adriatic  sea. 


5.  The  pope,  overjoyed  at  this  success,  went  out 
to  receive  the  victorious  doge,  and,  to  immortalise 
his  triumph,  presented  him  his  ring,  with  these 
words :  "  Use  this  as  a  chain,  to  hold  the  waves  in 
"  subjection  to  the  empire  of  Venice ;  with  this 
"  ring  espouse  the  sea,  and  hereafter,  on  the  same 
"  day,  in  every  year,  let  the  celebration  of  this  mar- 
"  riage  be  renewed  by  you  and  your  successors.  By 
"  tliis  ceremony,  posterity  will  learn,  that  your  arms 
"  have  acquired  the  vast  dominion  of  the  waves,  and 
"  that  the  sea  is  subject  to  you,  as  the  wife  to  her 
"  husband. "(92)  Such  is  the  origin  of  tlie  pompous 
ceremony  performed  every  year  at  Venice  on  the 
day  of  the  ascension. (93) 

6.  By  the  favour  of  the  christian  princes,  estab- 
lished in  the  east,  the  Venetians  obtained  many  pri- 
vileges, which  gave  extension  and  security  to  their 
maritime  commerce,  Tliey  possessed  for  a  long 
time,  the  kingdom  ot  Cyprus,  obtained,  by  stratagem, 


(92)  This  ridiculous  prediction  ot  the  pope,  and  these  singular 
espousals,  did  not  prevent  the  French  arniy,  some  centuries  after- 
wards, from  dissolving  the  marriage.  By  the  treaty  ot  Campo  For- 
mio,  confirmed  by  that  of  Luneville,  the  9 ih  of  February,  1 801, 
between  France  and  the  emperor  of  Germany,  the  Adriatic  has 
received  a  second  husband. 

(95)  Ftsto  A.icensionis  Domini  quot  annis,  riiu  sokmv.i,  Dux,  nari 
Buctntauro  dzcia,  vtctus  coiuitante  umplissiiuo  Senatu.  ad  perpetuari' 
dum  sibi  maris  dominium,  annulum  in  medias  undas  projecit,  dicaido : 
desponrnmni  le  mare,  i7isignum  veri  el  perpelui  domiini.  Paulus  Me- 
rula,  in  Cosjnographia,  part  2,  lib.  \,  cap. .3. 


89  THE  MARITIME  LAW        Parti. 


Great  na^■al  power  and  commerce  of  the  Venetians. 


the  Morea,  the  island  of  Candia,  and  a  part  of  the 
Archipelago.  They  were  masters  of  Constantinople, 
Naples,  Sicily,  and  a  great  part  of  Italy.  The  cru- 
sades, so  ruinous  to  the  princes  of  Europe,  were  a 
source  of  riches,  power,  and  reputation  to  Venice. 
Her  citizens  had,  for  a  long  period,  maintained  con- 
siderable maritime  wars  against  the  Greeks,  the  Sar- 
acens, the  Pisans,  the  Genoese,  the  dukes  of  Milan, 
the  Turks,  and  the  English.  Their  superior  skill,  and 
naval  resources,  enabled  them  to  triumph  over  these 
nations,  and  rendered  them  formidable  to  all  Europe. 
From  the  farthest  shore  of  the  Black  sea,  to  the  coasts 
of  England,  they  enjoyed  an  extensive  and  flourish- 
ins:  commerce.  Their  fleets  were  numerous  and 
well  equipped  ;  skilful  workmen  fllled  their  spacious 
and  magnificent  arsenal ;  and  they  were  the  only 
nation  that  excelled  in  naval  architecture.  Able 
and  experienced  mariners,  and  galley-crews,  com- 
posed of  men  vigorous  and  indefatigable,  of  Cy- 
priots,  of  Candians,  and  Sclavonians,  rendered  their 
naval  forces  superior  to  any  in  Europe  or  Asia. 

7.  The  Venetians,  with  so  many  advantages  at 
sea,  were  too  conscious  of  their  superiority,  to  sup- 
pose that  they  ought  to  behave  with  justice  and  mo- 
deration towards  commercial  nations.  Their  spolia- 
tions and  vexations,  were  so  provoking,  that  Helian, 
the  French  ambassador,  in  a  discourse  delivered  in 
the  German  diet,  did  not  scruple  to  compare  them  to 
sea-monsters,  rocks,  and  tempests.    This  harangue. 


Chap.L  OF  EUROPE.  81 


The  power  of  Venice  excites  the  jealousy  of  other  nations. 


full  of  invective,  shews  to  what  degree  they  had  ex-* 
cited  the  general  detestation  of  (94)  other  nations. 

S.  The  grandeur  and  power  of  Venice  had  long 
given  umbrage  to  the  princes  of  Europe.  Pope 
Julius  II.  in  1509,  took  advantage  of  this  jea- 
lousy, to  recover  several  Italian  cities,  considered  by 
him  as  the  patrimony  of  the  church.  He  excited  the 
emperor,  the  king  of  France,  the  king  of  Naples, 
the  duke  of  Savoy,  and  the  duke  of  Ferrara,  to  join 
in  a  league  at  Cambray,  and  to  determine  on  the  de- 
struction of  this  ambitious  republic.  She  owed  her 
preservation  to  dissensions  among  the  combined  pow- 
ers, and  to  the  gold  she  employed  to  excite  divisions. 

9.  Venice,  having  escaped,  by  refined  policy,  from 
such  imminent  danger,  could  not  guard  against  the 
unexpected  check  she  soon  after  received  from  the 
Portuguese,  who  had  sailed  round  the  Cape  of  Good 
Hope.    The  means  which  slic  employed  to  defeat 

(94-)  "  They  call  themselves,"  exclaimed  this  ambassador,  "  the 
lords  and  masters  of  the  sea,  which  ought  rather  to  be  common  to 
all  nations,  or  at  lea>t,  to  belong  to  your  imperial  majesty,  in  pre- 
ference to  all  other  princes ;  and,  as  if  thev  were  the  husband  of 
Thetis,  or  the  wives  of  Neptune,  they  espouse  the  sea,  every  year, 
by  throwing  into  it,  a  ring.  Whoever  heard  of  espousing  the  ele- 
ments ?  The  Venetians  alone  are  capable  of  so  much  arrogance  and 
folly  ;  a  nation  who  have  inherited  the  avarice  and  cruelty  of  their 
ancestors.  It  is  an  invention  worthy  of  the«e  insatiable  whales, 
these  infamous  corsairs,  these  pitiless  Cyclopses  and  Polyphemuses, 
who  beset  every  coast,  and  are  more  to  be  feared  than  the  mon- 
sters of  the  deep  ;  than  shoals,  rocks  or  tempests." 

Vol.  I.  L 


82  THE  MARITIME  LAW        Parti 


Decline  of  the  commerce,  and  navitl  power  of  Venice. 


their  enterprises,  and  to  destroy  their  establishments, 
by  sen.iin^  engineers,  artificers,  and  warlike  stores  to 
the  sultan  of  Eo^ypt,  and  zamorin  of  Calcutta,  pro- 
claimed her  weakness  and  despair.  The  commerce 
ot  the  East-Indies,  which  the  Venetians  had  carried 
on  almost  exclusively,  by  the  Red  sea  and  Egypt, 
and  by  the  caravans  of  the  maritime  cities  of  Asia^ 
now  left  her,  never  to  return.  Deprived  of  these  re- 
sources, Venice  ceased  to  attend  to  naval  affairs,  and 
no  longer  ranked  among  maritime  powers. 

10.  This  republic,  so  renowned  for  its  wisdom  and 
firmness,  the  rival  of  kings  and  emperors,  and  which 
held,  for  a  long  time,  the  balance  of  Europe,  was  sup- 
ported, during  the  last  century,  by  its  absolute  aris- 
tocracy, its  state  inquisitors,  and  the  tyrannical  pre- 
cautions with  which  it  was  surrounded.  Suspicious 
and  pusillanimous  from  principle  ;  dark  and  circum- 
spect through  weakness,  but  always  affecting  the  chi- 
merical sovereignty  of  the  sea,  instead  of  scrupulous- 
ly observing  her  promised  neutrality,  she  was  so  un- 
wise as  to  form  a  secret  coalition  with  Austria,  during 
the  last  war  against  the  French  republic.  The  per- 
fidious plots  of  the  senate  against  the  French  were 
discovered,  and  the  result  of  this  short-sighted  policy 
has  been,  her  subjection  to  the  emperor  of  Germany, 
and  the  merited  contempt  of  the  world. (95) 

(93)  Venice  might  easily  resume  its  ancient  splendour,  if  the 
Anstr'ati  s^overnment,  its  present  possessor,  were  to  put  in  execu- 
tion the  plan  ot  reioini  presented  to  it,  in  1801,  hy  Francois-Jacques 


Chap.  /.  OF  EUROPE.  83 


The  maritime  power  of  Genoa 


Section  II, 

GENOA. 

§  1.  THE  republic  of  Genoa,  which  has  always 
supported  a  respectable  rank  among  the  states  oi  It- 
aly, long  maintained  the  lYiaritime  ascendancy  she 
had  acquired,  by  means  oi  her  numerous  victories 
over  the  Venetians,  Pisans,  and  Saracens.  Her  pow- 
er made  her  teared  m  the  /Egean  aca,  in  the  Eux- 
ine,  in  Syria  and  Palestine.  Siie  seized  on  Catla,  a. 
city  of  Little  Fartary,  situated  on  the  coast  of  the  Cim- 
merian Bosphorus,(96)  and  on  the  islands  of  Crete 

Tommasini,  the  commissary  «f  commercial  relations,  from  Etriiria, 
at  Marseilles,  contained  in  his  excellent  work,  priiiied  al  Venice, 
entitled,  Rifiessioni  sommarie  sul  modo  di  sottrarc,  il  cuiumevcio  e  la 
marina  I'eneia  da  ulterior  decadenza,  i^c* 

(96)  Many  vestiges  of  Genoese  magnificence  are  yet  to  be  seen 
at  Caffd,  They  had  possession  of  it  above  2U0  years.  Bui  tiiey 
were  insolent  enough  to  prohibit  the  Greeks  and  Vt^netians  from 
entering  any  port  beyond  tiie  mouths  of  the  Danube.  Tney  form- 
ed a  similar  project  of  establishing  ar-gtit  ol  entry  into  the  Bospi:o- 
rus.  Tiie  commerce  ot  Culfa  co:itinueu  to  Hourisli  atier  tlie  Turks 
had  expelled  the  Genoese  from  the  Crimea, 


*  We  are  ignorant  of  tlic  nature  of  tlic  plan  of  M.  Tommasini,  but  tlie 
pauses  wluch  have  so  totally  ani'.ilulatcd  the  maritime  power  of  tlie  Italian 
states,  by  tiiminj.  die  commerce  of  the  east  into  otiicr  ciianiiels,  sliil  ope- 
rate ill  ;iU  tlieir  force  ;  so  tliat  it  is  not  easy  to  conceive  how  the  ancent 
splendour  of  Venice  is  to  be  restored.  The  events  wliich  subjectetl  her  to 
the  rapacity  of  France,  by  whom  she  was  tiansferrcd  to  AusU-ia,  ai-e  toQ 
recent  not  to  he  jcnfTy.lly  known.....,T. 


84  THE  MARITIME  LAW        Parti. 


Commerce  of  Genoa  with  India. 


and  Cyprus,  in  which  she  possessed,  during  a  century, 
the  city  of  Famagousta.  Mytelene  and  Galata,  op- 
posite Constantinople,  also  belonged  to  Genoa,  with 
half  the  island  of  Sardinia,  and  the  islands  of  Corsica, 
and  Caprara.  These  establishments  enabled  the  Ge- 
noese to  carry  on  comnxerce  with  India,  across  the 
northern  parts  of  Asia,  and  the  deserts  of  Arabia,  as 
well  as  by  the  Persian  gulf,  the  Tigris  and  Euphra- 
tes, the  Black  Sea  and  Mediterranean,  in  the  same 
manner  as  had  been  formerly  done  by  the  Greek  em- 
pire. 

2.  Celebrated  as  navigators,  the  Genoese  were  so 
powerful  that  they  assumed,  and  held,  for  a  long 
time,  the  empire  of  the  sea.  They  frequently  clear- 
ed the  Mediterranean  of  pirates,  and  of  the  Saracens, 
who  infested  its  commerce.  Their  friendship  was 
often  solicited  by  the  crusading  powers,  by  the  Greek 
emperors,  and  the  kings  of  France.  This  republic 
was  not  ashamed  to  see  its  admirals  and  seamen  en- 
ter into  the  service  of  foreign  governments  ;  and  the 
famous  Doria,  the  Grimaldi,  and  Spinola,  who  main- 
tained the  glory  of  their  country,  have  been,  at  va- 
rious times,  the  terror  of  the  Ottomans  and  of  the 
English. 

3.  The  maritime  power  of  Genoa  was  annihilated 
by  the  same  cause  that  destroyed  that  of  Venice, 
The  Medit-^;rran<::an,  which  had  long  been  the  thea- 
tre of  war  between  the  surrounding  nations,  failed 
to  produce  rivalship,  when  they  ceased  to  feel  any 


Chap.  I.  OF  EUROPE.  85 


Desti-uctlon  of  the  maritime  power  of  Genoa. — Pisa. 


\ 


interest  in  possessing  its  exclusive  empire.  The  dis- 
covery of  another  hemisphere,  distinguished  the  age 
of  Christopher  Columbus,  an  enterprising  Genoese. 
AVhen  America  became  known,  all  maritime  enter- 
prises were  directed  to  the  Atlantic  Ocean.  Italy 
was  no  longer  the  centre  of  the  commercial  world. 
From  this  period,  the  industry  of  the  Genoese  has 
been  inadequate  to  the  maintenance  of  their  marine, 
which  they  have,  at  length,  entirely  abandoned. 

Section  III. 

PISA. 

§  1.  ON  the  subversion  of  the  Roman  empire, 
Pisa,  like  many  other  cities  of  Italy,  erected  itself  in- 
to a  republic.  ]^y  means  of  the  Arno,  which  served 
it  for  a  port,  and  a  shelter  from  storms  and  pirates,  it 
soon  became  a  formidable  maritime  power. 

2.  The  riches  of  Pisa,  increased  by  her  immense 
commerce  with  the  east,  raised  her  to  the  rank  of 
the  most  powerful  cities  in  the  Mediterranean,  where 
she  maintained  such  numerous  fleets,  that  she  was 
considered  as  the  mistress  of  the  sea. (97)  Her  name 

(97)  Pisanorum  praterea  clarissimam  Jamam  Jacere  bdla  cum 
inaximispopulis,  summisque  principibus  terra  marique  gesta,  qucE  tan- 
iis  cos  taudibus  celebruvere,  ut  prhilegio  quocta7n  maiia  doiinm  roca- 
raitur.  Jo.  Florentinus,  n\  vita  Simon.  Saltar.  archicp.  Pis.  Jn  Ita- 
lia tres  fuerc  prepotaites  in  muntimis  rebus  urbcs.  Visa,  Genua,  Ve- 
nitia.     £o  inagnitudinis  rem  tisanurii  hue  in  purtc  erectam  memo- 


86  THE  MARITIME  LAW         Part  L 

Maritime  power  of  Pisa. 

became  celebrated  throughout  Europe  and  Asia,  in 
which  she  possessed  many  islands  and  maritime 
•towns,  in  consequence  of  the  naval  wars  she  main- 
tained with  so  much  glory,  against  the  most  power- 
ful nations. (98) 

3.  Before  pope  JohnXVIII.  published  the  indul- 
gence, by  which  all  the  cathoJc  states  were  invited 
to  dehver  Sardinia  from  the  Saracens,  and  had  prom- 
ised the  sovereignty  of  the  island  to  whoever  would 
wrest  it  from  their  hands,  the  Pisans  had,  in  1003, 
under  Victor  Ricucchi,  the  commander  of  their 
fleet,  already  made  those  barbarians  teel  tlie  torce 
of  their  naval  power. (99)  They  were  the  first  to  ac- 
cept the  invitation,  and  to  make  preparations.  The 
new  fleet,  equipped  against  Sardinia,  soon  routed 
that  of  the  Saracens,  commanded  by  their  king  Mu- 
setto,  settled  in  that  island.    The  Pisans  destroyed 

rantfUt  centum  eorurnfamilice  toiidein  roatratas  naves  privaio  sianptu 
oedificasse  et  exornasse  ad  bellum  ligusticum  dicanttir.  Klok,  de  itra- 
rio,  lib.  2,  cap.  25.  Villani,  istoriajiorent,  lib.  7,  cap.  82. 

(98)  Et  jure  quidem  merito  Pisani  et  imperatorum  privilegiis,  et 
populorum  acclaniationibus  maris  domini  dicti  sunt':  turn  quia  ante 
sacrum  illud  maximi  Pontifici  Urbani  II.  ciassician  (quo  terra  saiic- 
ta  vestigiis  domini  nosti'i  pressa  nomini  cliristiano  J'uit  restUuta.) 
Pisani  Saracenos  illas  regiones  occupantes  iieraiis  classibus,  ac  vuli- 
dissimis  armis,  soli  jam  exagiiaverant  eoruniqne  rires  attriterant  : 
tarn  quia  tarn  in  occidente,  quam  in  oriente,  qurnii  plures  et  maritimas 
civitates  et  oppida,  ac  loca  atque  insulas  possiderent.  Muratori,  rer. 
italix.  sa'ipt.  torn.  3,  p.  402,  col.  2,  lit.  C, 

(99)  Roncioni,  storia  di  Pisa,  MS.  lib.  2. 


Chap.  I.  OF  EUROPE. 


Great  reputation  and  power  of  Pisa. 


the  ancient  city  of  Torri,  a  Roman  colony,  seized  on 
Sassari,  Orosea,  and  Oristano,  and,  after  several  bat- 
tles, in  which  they  annihilated  the  fleet  of  the  enemy, 
remained  masters  of  the  kingdom. (100) 

4.  So  great  was  the  naval  force  of  the  Pisans, 
that,  by  their  numerous  squadrons,  they  were  able  to 
resist  the  most  powerful  and  warlike  princes.  The 
Roman  pontiff,  in  1267,  wrote  to  Henry,  brother  of 
the  king  of  Castile,  who  w^as  desirous  of  conquering 
Sardinia,  to  dissuade  him  from  an  enterprise  attend- 
ed by  too  great  difficulty  and  danger,  since  he  would 
have  to  contend  with  the  Pisans. (101) 

5.  The  republic  of  Pisa,  justly  merited  its  high  re- 
putation, as  well  on  account  of  the  number  of  its 
ships,  and  its  naval  victories,  as  for  the  considerable 
privileges  granted  to  it  by  the  emperor,  who  gloried 
in  having  Pisa  for  a  friend, (102)  and  for  the  advan- 

(100)  Seem)-  history  of  Sardinia,  vol.  I,  p.  IDS,  109. 

{\0\) 'itunninm  ad  regnum  Sardininm  tuos  acrdos  direxisti ,  scire 
ie  Tolumus,  quod  inultis  sutnpiibvs  indigercs,  prccsertim  quum  Pisanos 
hnberes  adversarios.  Mallei.  Sardinia  sacra,  cup.  2. 

(102)  The  emperors  Frederick  I.  in  1  161,  Otho  IV.  in  1209, 
and  Frederick  II.  in  1220,  in  confirming  (he  ample  privileges 
granted  to  (he  republic  of  Pisa,  express  (hemselves  in  their  diplo- 
mas in  the  following  manner  :  "  Pisanorinn  nierila  merith  resfiexi- 
mus,  presertim  cum  per  eoruni  industriam  et  virium  pottntiam,  hono- 
rem  et  gloriam  imperii,  atque  reipjthlicce  ipsi  prce  cceteris  glnriose 
semper  adauxerint,   et  semper  adaugere  proposuerint .    'sluania  fideli' 


88  THE  MARITIME  LAAV        Part  L 


Privileges  granted  to  Pisa  by  various  sovereigns. 

tageous  treaties  which  it  concluded  with  the  most 
distinguished  powers  of  that  age. (103)  She  conquer- 

iate  et  prohitate  Pisana  civitas  a  prima  sun  fundaiione  caput  suiim  in- 
ter alias  cixitates  extulerit,  quanta  etiam  constaniia  diris  antecesso- 
ribiis  nostris  regihis  Rojnanerum  el  imporatorihus  fideliter  sertien  - 
do  perseveranier  adheseri.  Nos  per  midta  scripta  et  relationes  scc- 
pius  audivimiis,  et  in  super  ex  ipsorum  operum  attesiatione  et  ipsum 
luce  clarius  constat,"  SfC.  Arrigaes,  king  of  Jerusalem  and  Cy- 
pru^,  by  a  diploma,  in  1291,  granted  the  consulate  and  other  pri- 
vileges to  the  Pisans,  of  which  the  following  is  the  tenor  :  "  In  the 
name  of  the  holy  and  undivided  Trinity,  Father,  Son,  and  Holy 
Ghost,  Amen.  We,  Arrigues,  by  the  grace  of  God,  1 3th  king  of 
Jerusalem,  and  king  oF  Cypru?,  make  known  to  all,  whom  these 
presents  do  or  mav  concern,  that,  by  our  special  grace  and  favour, 
we  have  granted,  and  do  grant,  for  ourselves  and  our  heirs,  to  fhe 
jieople  of  Pisa,  and  to  every  individual  Pisan,  of  whatever  condition, 
residing,  going,  or  coming,  or  who  shall  enter  or  depart,  from  our 
kingdom  of  Cyprus,  defence  and  protection  in  our  said  kingdom, 
and  in  all  the  ports  thereof  Furtlier,  by  our  special  grace,  we  have 
granted  that  the  Pisans  should  have  in  our  said  kingdom  of  Cyprus, 
a  Consulate,  to  bear  the  staff  of  office,  and  to  take  cognisance  of  all 
matters,  except  what  belongs  to  our  city  magistracy  and  our  own 
courts  of  justice  ;  and  that  all  the  inhabitants  of  our  said  kingdom, 
saving  our  seignioralty,  who  have  any  right  of  action  against  any 
Pisan,  shall  be  bound  to  bring  his  action  before  the  Consul  of  that 
nation  ;  and  it  is  our  will  and  pleasure,  that  as  often  as  the  said  Con- 
sul shall  think  proper  to  send  any  Pisan  to  our  prison,  our  officers 
shall  give  him  all  necessary  aid  and  support  for  that  purpose." 

(103)  About  the  year  1 100,  a  treaty  of  peace  was  concluded  be- 
tween the  Pisans  and  the  emperor  Alexis,  on  the  following  terms  : 
That  the  Pi>;an  siiips  should  never  be  insulted  in  any  part  of  the 
eastern  empire,  that  all  their  mercliants  at  Constantinople  should 
have  an  exchange,  a  quarter  for  their  residence,  a  warehouse  and 
church  for  their  nation,  and  that  they  might  appoint  a  Consul  who 
should  decide  all  the  differences  that  might  arise  among  them.  See 
Codin  Curopalata,  de  Me/isa  imperatoris,  cap.  7,  §  9. 


Chap.  I.  OF  EUROPE.  89 

Pisa,  torn  by  factions,  is  finally  subjected  to  Florence. 

rr ■  ■  :;a 

ed  Corsica,  and  the  Balearean  islands,  the  cities  of 
Palermo  and  Carthage,  gave  considerable  assistance 
to  the  crusaders,  and  delivered  Alexandria,  when  be- 
sieged by  its  enemies. 

6.  Pisa  having  taken  part  in  the  disputes  of  the 
Guelphs  and  the  Ghibbelines,  whose  factions  deso- 
lated Italy,  was  alternately  on  the  side  of  the  pope 
and  of  the  emperor.  A  disastrous  war  which  it 
carried  on  against  the  Genoese,  who  took  forty  of  its 
gallies,  and  twelve  thousand  men,  inflicted  a  severe 
blow  on  the  power  of  Pisa.  It  afterwards  lost  the 
commerce  of  the  Levant,  and  their  port  was  taken 
and  destroyed  by  the  Genoese.  Tyrants,  under  the 
title  of  counts,  arose  in  the  bosom  of  the  state,  and 
hastened  its  ruin.  Ugolino  of  Gherardcseca,  one  of 
the  first  citizens  of  Pisa,  aided  the  Guelphs,  and  de- 
clared himself  the  head  of  the  faction.  He  was  ex- 
pelled, but  was  again  restored  by  the  Florentines. 
He  was  seized  at  last  by  the  Pisans,  and  shut  up  in 
a  tower,  where  he  was  left  with  his  children  to  die 
by  famine.*  Other  tyrants,  who  aftervv'ards  seized 
on  the  government,  were  also  overthrown  ;  but  Pisa, 
though  she  regained  her  liberty,  lost  it  for  ever,  by 
falling,  in  1509,  under  the  power  of  the  Floren- 
tines.(104) 


*  Dante,  in  tlie  33d  canto  of  his  Inferno,  has  described,  in  the 
most  affecting  manner,  the  dreadful  sufferings  and  horrid  death  of 
count  Ugohno  and  his  four  sons T. 

(lOV)  Amm\Ta\.o  htoria  fiorentina,  lib.  17.  y\\\dn\.  Ilislor.Jior. 
lib.  7,  cap.  32.  Roncioni,  lor.  cit. 
•  Vol.  I.  M 


90  THE  MARITIME  LAW        Part  L 


Maritime  enterprises  of  the  Saracens  and  Normans. 

Section  IV. 

THE  GOTHS,  VANDALS,  SARACENS,  AND 
NORMANS. 

§  1 ,  THE  Goths  and  Vandals  were  the  first  among 
the  barbarians  who  spread  themselves  over  the  finest 
parr  ot"  Europe.  It  does  not  appear  that  they  ever 
undertook  any  remarkable  naval  enterprise.  Their 
longest  voyages  were  in  the  Mediterranean,  between 
Italy  and  Africa,  Spain,  and  the  adjacent  islands. 
The  Saracens  soon  followed  the  Vandals,  and  far  ex- 
ceeded them  in  maritime  forces.  Navigation,  how- 
ever, is  not  indebted  to  their  exertions.  Their  mari- 
time empire  was  momentary,  and  extended  no  fur- 
ther than  the  coasts  of  Africa,  Spain  and  Sardinia, 
which  they  invaded.  After  the  Saracens,  the  Nor- 
n^ans  infested  the  coasts  of  Britain  and  France.  They 
sent,  at  various  times,  from  Norway,  considerable 
fleets,  and  numerous  bodies  of  emigrants.  They  fi- 
nally established  themselves  in  Normandy,  from 
whence  they  cruised  along  the  coasts  of  Spain,  enter- 
ed the  Mediterranean,  through  the  straits  of  Gibral- 
tar, and  conquered  the  kingdom  of  Naples  and  Si- 
cily. Though  the  Normans  made  longer  voyages 
than  the  other  barbarians,  their  navigation  was  very 
limited,  as  they  seldom  extended  their  excursions  be- 
yond the  coast.  Their  empire  on  the  sea  was  exercised 
in  occasional  combats,  and  in  pillaging  the  neigh- 
bouring countries. 


Chap.  I.  OF  EUROPE.  91 


Naval  armsiinents  of  the  crusaders. 


Section  V. 

THE  CRUSADES. 

§  1.  A  SUDDEN  inspiration,  the  enthusiasm  of  • 
christian  piety,  in  1096,  prompted  the  kings,  princes, 
ecclesiastics,  and  people  of  Europe,  to  make  voyages 
to  the  Holy  Land.  The  crusaders,  destitute  of  a  ma- 
rine, were  obliged  to  borrow  ships,  at  a  great  expense, 
from  the  Venetians,  the  Genoese,  and  the  Pisans ; 
and,  in  the  expedition  of  Charles  VI.  from  the  Hol- 
landers and  Zealanders,  who  were  enriched  by  the 
freight,  which  they  very  prudently  obliged  the  cru- 
saders to  pay  in  advance.  These  enterprises  did  not 
correspond  w^ith  the  motives  which  gave  them  birth. 
A  noble  ambition,  and  a  religious  zeal  for  the  deliver- 
ance of  the  Holy  Land  from  the  tyranny  of  infidels,  ac- 
tuated the  first  crusaders :  but  this  zeal  soon  deirene- 
rated  into  the  most  extravagant,  cruel,  and  disgraceful 
fanaticism.  The  sanctity  of  the  object  in  view,  was 
constantly  belied  by  their  conduct ;  they  spoke  of 
nothing  but  virtue,  while  they  dishonoured  its  name 
by  their  numerous  vices.  The  kings  of  France,  lead- 
ers of  these  expeditions,  hastily  built  some  ships  at 
Marseilles,  and  took  others  by  force,  along  the  coast 
of  Languedoc  and  Provence.  Armaments  thus  made, 
without  choice  or  preparation,  could  hardly  insure 
success.  Accident,  alone,  decided  on  the  number  of 
vessels,  the  manner  of  equipping  them,  and  on  the  y 
route  they  were  to  take.  All  these  equipments  were 
forced  exertions,  that  disappeared  with  the  extraor- 


^2  THE  MARITIME  TAW        Part  I 

■  I  , ,  ■ ...  ,,.; 

Failures  of  the  crusaders. — Their  effects. 

dinary  enterprise  for  which  they  were  destined. 
Useless  delays,  abortive  projects,  and  shipwrecks, 
followed  in  succession.  These  attempts,  nine  times 
repeated,  with  the  same  disasters,  gave,  however,  to 
the  fleets  of  the  crusaders,  a  maritime  preponderance 
in  the  Mediterranean  and  Archipelago ;  but  it  van- 
ished as  soon  as  the  jealousy  of  the  English,  and  the 
bad  faith  of  the  Greek  emperors,  had  rendered  inef- 
fectual those  establishments  which  France,  exhausted 
by  so  many  losses,  was  unable  to  protect. (105) 

(105)  "  As  to  the  effects  of  the  crusades,"  says  M.  Chapus, 
"  admitting  that  they  have  cost  Europe  many  men,  and  a  great 
"  deal  ot  money,  and  have  communicated  to  us  diseases,  with 
"  which  we  are  still  afflicted  ;  yet,  it  is  certain,  that  thecrusades  di- 
*'  minished  the  evils  of  the  feudal  system,  by  augmenting  the  power 
**  of  the  kings,  and  the  influence  of  the  common  people,  and  that 
**  they  have  imparted  an  incredible  increase  and  spring  to  com- 
"  merce  in  every  part  of  the  world.''  Page  180. 


Chap.  I.  OF  EUROPE.  93 


Invention  of  the  mariner's  compass. — Discovery  of  America. 


ARTICLE  IV. 

Of  the  States  who  have  claimed  the  empire  of  the  Sea, 
since  the  discovery  of  America. 

§  1.  THEsinguIarpropcrty  of  the  magnet, oi'' point- 
ing towards  the  poles,  was  unknown  to  the  ancients. 
Numerous  experiments  with  the  magnetic  needle, 
suggested  the  idea  of  the  mariner's  compass. (106) 
As  soon  as  the  pilot  found,  in  this  instrument,  a  faith- 
ful guide  in  his  course,  he  became  more  bold  and  ad- 
venturous. This  boldness  gradually  Jed  to  the  open- 
ing of  a  new  passage  to  India,  by  the  Atlantic  ocean, 
and  to  the  discovery  ot  America,  From  that  period, 
the  western  nations  of  Europe,  in  search  of  gold  and 
silver,  at  the  price  of  a  thousand  dangers,  and  of 
every  crime,  burst  the  barriers  which  seemed  to 
have  been  placed  between  the  two  hemispheres. 

(106)  The  discovery  of  the  mariner's  compass  belongs  to  France: 
She  was  the  first,  among  the  nations  ol  Europe,  after  tlie  12th  cen- 
tury, to  make  use  of  it,  under  the  name  of  marinette  or  mariincre. 
See  the  proofs  m  support  of  this  opinion  in  my  Dissertation  on  the 
Mariner'' s  Compass,  '2d  edition,  Venice,  1797.* 


*  Dr.  Robertson,  in  his  History  of  America,  vol.  1,  book  1,  gives  the 
Tncrit  of  this  iliscovcry  to  Fiavio  Gioia,  a  Neapolitan,  and  native  of  Amalfi, 
about  the  year  1302.  It  is  said  by  some,  to  have  been  used  at  Venice,  in 
1262,  and  by  oJicrs,  to  have  been  known  to  Qie  Chinese,  above  1100  years 
teforc  tJie  christian  sera T. 


94  THE  MARITIME  LAW        Part  I. 


Discoveries  in  Amex-ica  and  India,  by  the  nations  of  Europe. — Portugal. 


2.  Portugal,  Spain,  Holland,  England,  and  France, 
each  in  their  turn,  made  discoveries  in  the  new 
world.*  A  jealous  and  restless  ambition  impelled 
'  these  nations,  with  the  exception  of  France,  to  em- 
ploy every  means  of  tyranny  to  keep  the  exclusive 
possession  of  their  respective  discoveries.  Hence  that 
despotism  which  they  have  severally  exercised  in  or- 
der to  obtain  the  exclusive  empire  of  the  seas,  to  the 
prejudice  of  each  other.  We  shall  briefly  examine 
their  conduct,  to  show  how  each  nation  abused  its 
/  power,  when  the  superiority  of  naval  force  gave  it  a 

maritime  preponderance  over  its  rivals. 

Section  I. 

PORTUGAL. 

§  1.  THE  Portuguese  firstmade  the  ocean  an  ave- 
nue to  conquest.  Prince  Henry,  son  of  John  I.  king 
of  Portugal,  conceived  the  plan  of  carrying  on  a  com- 
merce with  the  coasts  of  Africa.  The  study  of  as- 
tronomy, and  the  Observatory  erected  at  Sagres,  a 
city  of  Algarva,  led  to  the  invention  of  the  Astrolabe. 
He  was  the  first  to  perceive  the  advantages  to  be  de- 
rived from  the  compass,  already  known  in  Europe, 
but  which  no  one  had  yet  ventured  to  use  in  navi- 
gating the  ocean.  The  pilots  formed  under  the  direc- 
tion of  this  prince,  discovered,  in  1419,  the  island  of 


*  Dr.  Robertson,  in  his  History  of  America,  vol  1,  book  1,  lias 
given  a  learned  and  instructive  view  of  the  progress  of  commerce 
and  navigation T. 


Chap.  I.  OF  EUROPE.  95 

The  Portuguese  discover  the  Caix;  of  Good  Hope. 


Madeira.  John  II.  tlie  son  of  Henry,  following  the 
steps  of  his  father,  made  a  further  application  of  the 
compass  to  navigation,  and,  by  its  help,  the  Portu- 
guese arrived  at  the  Cape,  situated  at  the  extremity 
of  Africa,  called  at  first  the  Cape  of  Storms,  after- 
wards the  Cape  of  Good  Hope,  because  it  opened 
to  them  a  passage  to  the  East-Indies. (107)    King 

(107)  It  is  pretended,  that  Hanno,  to  whom  tlie  Carthaginian 
senate,  had  given  the  command  ot  50  vessels  and  30,000  men,  for 
the  purpose  ofestablishing  colonies,  passed  the  straits  of  Gibraltar, 
sailed  along  the  western  coast  of  Africa,  and  arrived  at  the  borders 
of  Arabia,  where  he  stopped  for  want  of  provisions.  A  relation  of 
this  vo)  age,  known  by  the  name  of  the  Periplus,  was  made  in  the 
Punic  language.  (See  the  learned  researches  on  the  state  and  pro- 
gress of  navigation  among  the  ancients,  by  M.  Peuchet,  inserted  in 
his  Biblioiheque  Commerciule,  p.  101,  1803.)  Able  philologists 
assert,  and  Mr.  Dodwell  seems  to  have  proved  it  beyond  all  con- 
troversy, that  Ihe  Periplus  is  not  the  work  composed  by  Hanno.  It 
is  certain,  however,  that  the  Carthaginian  navigator  did  make  a 
relation  of  his  voyage.  It  is  mentioned  by  Aristotle,  Pliny,  and  Pom- 
ponius  Mela.  This  is  sufficient  to  show  that  the  ancients  believed  it 
practicable  to  sail  round  Africa.  Cornelius  Nepossays,  iJiat  in  his 
time,  Eudoxus,  wishing  to  escape  the  anger  of  king  Laihyrus,  em- 
barked in  the  gulf  of  Arabia,  and  continued  his  voyage,  till  he  ar- 
rived at  Gades.  M,  Huet  pretends,  that  from  the  time  of  Solomon, 
the  Cape  of  Good  Hope  was  known  and  frequented.  If  all  these  re- 
lations are  true,  the  Portuguese  merely  found  out  a  route,  the  know- 
ledge of  which  had  been  lost.  The  second  discovery,  however, 
is  not  less  glorious  than  the  first. 

"  If  the  Europeans  could,  one  day,  efface  the  remembrance  of 
"  the  crimes  with  which  they  have  been  stained  since  thediscove- 
"  ry  of  the  two  Indies ;  if  the  sweets  of  fraternal  intercourse, 
"  founded  on  reciprocal  wants,  should  ever  become  the  only  ties  to 
"  unite  the  inhabitants  of  the  old  and  new  world;  then  might  fii- 
"  turc generations,  struck  with  astonibhment  at  tlie  bold  conccotions 


96  THE  TvIARITIME  LAW        Part  L 


Emanuel. — Vasco  de  Gama  discovers  Indostan. 

Emanuel  prosecuted  the  schemes  of  his  predecessor; 
he  dispatched,  on  the  10th  July,  1497,  a  squadron  of 
four  vessels,  under  the  command  of  Vasco  de  Gama, 
who,  after  running  along  the  eastern  coast  of  Africa, 
discovered  Indostan. (108) 

2.  King  Emanuel,  profiting  by  the  discoveries 
made  by  several  Portuguese  in  different  parts  of  In- 
dia, resolved  to  make  a  permanent  establishment 
there,  the  better  to  secure  his  dominion  over  the  va- 
rious settlements.  In  1505,  he  sent  Francis  Almey- 
da  to  India,  in  character  of  viceroy,  with  a  fleet  of 
twenty-two  ships.  During  his  route,  this  navigator 
built  several  forts  to  protect  the  navigation  of  the  In- 
dies, and  arrived  on  the  6th  April  at  the  Cape  de 
Verd  Islands,  The  king  of  Calicut,  leagued  with  the 
Egyptians  and  Arabs,  and,  jealous  of  the  successes  of 
the  Portuguese,  attacked  their  squadron  with  a  fleet 
consisting  of  near  two  huadred  vessels.  Against 
these  numerous  enemies,  Almeyda  opposed  his  cou- 
rage and  intrepidity,  and  gained  over  them  a  signal 
victory.    At  the  same  time,  the  son  of  Almeyda,  di- 

"  of  their  ancestors,  raise  a  monument  to  the  genius  of  navigation. 
"  This  genius  would  appear  wilh  her  attributes,  a  globe  and  a  com- 
"  pass,  before  prince  Henry  of  Portugal ;  while  the  Indian,  the 
"  founder  of  nations,  the  African  freed  from  his  fetters,  the  Peru- 
"  vian  escaped  from  death,  would  bow  before  the  European,  whose 
•"  power  would  at  length  unite,  in  mutual  embrace,  the  remotest 
**  regions  of  the  globe."  Arnould,  System,  marit.  et  polit.  ch.  2. 

(108)  See  my  dissertation  on  the  mariner's  compass,  ch.  3,  2d  edi- 
tion, Venice,  1797. 


Chap.  I.  OF  EUROPE.  97 


Successes  of  the  Poi-tiiguese  in  India. 


rected  to  cruise  with  nine  vessels  towards  the  Mal- 
dives, in  order  to  intercept  the  Arabian  ships  rrom 
the  Moluccas,  accidentally  fell  in  with  the  coast  of 
the  island  of  Ceylon,  before  unknown  to  the  Portu- 
guese, took  possession  of  it  in  the  name  of  his  king, 
and  caused  a  marble  column  to  be  there  erected, 
bcarino;  the  arms  of  Portugal. 

3.  Tristan  d'Acnna,  accompanied  by  Alphonso 
Albuquerque,  set  sail  from  Portugal,  in  1508,  with  a 
squadron  of  eighteen  ships,  and  made  a  descent  on  the 
island  of  Madagascar,  to  discover  the  character  of 
the  inhabitants  and  the  resources  of  the  country. 
The  arrtval  of  Tristan  in  India,  gave  new  vigour 
to  the  Portuguese,  who,  during  four  months  had 
been  contending  with  the  king  of  Calicut.  He  dis- 
tinguished himself  by  many  striking  actions  of  cou- 
rage and  moderation,  and  returned  to  his  country 
with  fnc  ships.  Albuquerque,  who  remained  in  In- 
dia, took  every  care  to  render  the  flag  of  his  king 
respected.  He  cruised  with  several  vessels,  in  order 
to  keep  in  awe  the  countries  surrounding  the  gulfs  of 
Arabia  and  Persia.  Almeyda,  on  his  part,  had  for- 
midable enemies  to  combat.  The  king  of  Calicut, 
supported  by  all  the  maritime  forces  of  Malabar,  and 
a  multitude  of  Arabian  vessels,  engaged  him  in  nu- 
merous conflicts,  and  with  various  success.  Lauren- 
tius  Almeyda,  son  of  the  viceroy,  perished  in  one  of 
these  engagements,  after  exhibiting  strong  proofs  of 
valour.  To  avenge  the  death  of  his  son,  the  viceroy 
Vol..  f.  N 


I 


98  THE  MARITIME  LAW        Part  L 


Victories  and  conquests  of  the  Portuguese. 


collected  a  squadron  of  ninety  sail,  attacked  the  fleet 
of  the  enemy,  consisting  of  more  than  one  hundred 
ships,  and  entirely  routed  it.  This  victory  secured 
to  the  Portug  jese,  the  empire  of  the  Indian  sea. 

4.  Albuquerque,  having  become  viceroy,  after  the 
deatli  of  Aliiieyda,  supported  the  dignity  of  his  sta- 
tion with  new  splendour,  gave  reputation  to  the  Por- 
tuguese maritime  power  in  India,  and  filled  their 
enemies  with  terror.  After  the  capture  of  Goa,  this 
warrior  did  not  remain  inactive,  but  attempted  to 
extend  his  conquests.  He  equipped  twenty-three 
vessels,  sailed  towards  Sumatra,  subjected  Malac- 
ca to  his  arms,  and  took  vengeance  for  tWe  inju- 
ries his  nation  had  suffered.  These  successes  were 
followed  by  many  others.  He  humbled  the  pride  of 
the  kings  of  Calicut,  and  of  the  Moluccas,  and  of 
other  sovereigns  in  India,  by  obliging  them  to 
pay  tribute  to  the  king  of  Portugal,  In  all  his  expe- 
ditions he  gave  the  most  striking  proofs  of  prudence 
and  valour. (109) 


(109)  We  may  here  recollect  the  jealousies,  which  the  intrigues 
of  the  Venetians  with  the  sultans  of  Egypt,  excited  against  the  Por- 
tuguese. The  Venetians,  who,  before  the  discovery  of  the  Cape  of 
Good  Hope,  carried  on  by  Egypt  and  the  Red  Sea,  a  great  part  of 
the  commerce  of  the  world,  lost  it  by  that  event.  Tl;e  Portu- 
guese, under  tlie  celebrated  Albuquerque,  encouraged  by  the 
Arab^,  who  wished  to  monopolize  all  the  commerce  with  India, 
acquired  a  powerful  empire  on  the  Indian  Ocean,  and  the  Red 
Sea.  The  Venetians  receivuig  little  or  no  aid,  from  the  natives 
of  the  country,  and  obliged  to  struggle  against  the  difhculties  of 


Chap.  I, 


OF  EUROPE. 


99 


The  great  services  of  AUbuquerque  are  ill  requitcd.i — His  death. 

5.  Albuquerque,  who  laid  the  foundation  of  the 
Portuguese  empire  in  India,  carried  the  glory  of  its 
name  to  the  extremities  of  the  earth,  subjected  to  the 
dominion  of  his  king,  the  whole  coast  from  the  river 
Indus  to  Cape  Comorin,  discovered  several  islands, 
subdued  Malacca,  conquered  the  kingdom  of  Or- 
mus,  and  vanquished  numerous  and  powerful  foes, 
saw  envy  and  malice  at  last  rise  against  him,  to  black- 
en his  character  in  the  eyes  of  his  sovereign.  The 
too  credulous  monarch  recalled  him,  and  sent  another 
governor  in  his  place.  This  great  man  was  so  af- 
flicted at  receiving  such  an  ill  requital,  for  all  the  ser- 
vices he  had  rendered  his  king  and  country,  that  he 
fell  sick  soon  after  his  return  from  Ormus,  and  died 
on  board  his  ship  in  the  port  of  Goa. 


transporting  from  Alexandria  to  Suez,  the  frames  of  vessels  sufficient 
to  contend  with  the  Portuguese  on  the  Red  Sea,  were  forced  to 
abandon  their  project.  The  nations  of  the  West  were  then  plun- 
ged in  the  darkest  ignorance,  and  did  not  suspect  (hat  any  great 
advantages  were  to  be  derived  from  commerce.  The  Portuguese, 
by  encouraging  voyages  and  discovesies,  became  more  enlightened 
than  the  otlier  European  nations,  and  the  vast  genius  of  Albuquerque 
knew  how  lo  appreciate  the  importance  of  a  commercial  inter- 
course with  India.  He  proposed,  in  case  of  any  great  obstacles  to 
his  schemes,  to  cut  through  the  banks  of  the  Nile,  in  Upper  Egypt, 
and,  by  turning  tlie  course  of  tliat  river  towards  (iie  RliI  Sea,  not 
only  to  draw  off,  by  that  means,  a  great  part  of  the  commerce  of  Afri- 
ca, but  toconvcrt  Lower  Egypt  into  a  desert,  so  as  (o  prevent  any 
colonization  of  the  country,  and  thus  erect  a  strong  barrier  between 
the  Mediterranean  and  ihe  Red  Sea.  The  inhumanity  of  this 
scheme  disappeared  with  the  political  necessity  which  dictated  it. 


100  THE  MARITIME  LAW        Pari  1. 

Contests  betweai  the  Portuguese  and  Spaniards. 

6.  After  the  death  of  Albuquerque,  the  Portuguese 
continued  to  send  viceroys,  ships  and  troops  to  the 
Indies,  to  extend  their  commerce,  and  preserve 
the  conquests  they  had  made.  In  these  opulent  re- 
gions, the  Portuguese  have  experienced  an  alterna- 
tion of  good  and  ill  fortune.  They  have  been  often 
victorious,  and  often  vanquished.  But  the  empire  of 
the  sea,  which  they  preserved,  gave  them,  in  that 
quarter,  a  preponderance  over  other  nations. 

7.  The  Portuguese  and  Spanish  were  too  near 
neighbours  to  remain  friends  long.  The  discoveries 
made  by  each,  produced  new  and  frequent  dis- 
sensions between  them.  Don  Alphonso,  king  of 
Portugal,  entered  into  a  violent  dispute  with  Ferdi- 
nand and  Isabella,  on  the  subject  of  the  Canary  isl- 
ands, claimed  by  both.  This  difference,  however, 
was  not  attended  with  serious  consequences.  Both 
monarchs  preferring  negotiation  to  war,  entered  into 
a  convention,  by  which  it  was  definitively  settled  that 
the  Azores,  Guinea,  and  western  Ethiopia,  should 
belong  to  the  Portuguese.  Pope  Sextus  IV.  by  his 
letters,  dated  at  Rome,  the  11th  of  the  calends  of 
July,  confirmed  this  treaty  as  well  as  the  bulls  of 
Martin  V.  Eugene  IV.  and  Nicholas  V. 

8.  The  disputes  which  had  divided  these  two 
neighbouring  nations,  were  renewed  with  more  vio- 
lence, under  the  emperor  Charles  V.  Sebastian  Ca- 
no,  having  reached  the  Moluccas,  by  the  strait  which 
he  and  Magellan  discovered,  persuaded  the  emperor 


Chap.  I.  OF  EUROPE.  lOl 


The  Portuguese  gain  possession  of  Uxe  Moluccas. — Conduct  of  Spain. 


that  these  islands  ouq^ht  to  belong  to  him,  as  the 
Portuguese  had  not  penetrated  to  them,  and  they 
were,  besides,  situated  within  the  part  which  fell  to 
him,  on  the  division  made  by  pope  Alexander  VI. 
These  reasons,  whicli  appeared  very  forcible  to  the 
emperor,  since  they  accorded  with  his  wishes,  seem- 
ed higiily  unjust  to  John  III.  king  of  Portugal,  whose 
interest  was  in  direct  opposition  to  that  of  the  Span- 
ish king.  These  princes,  though  they  did  not  possess  / 
very  implicit  faith  in  the  power  of  the  pope  to  bestow  ^ 
and  take  away  kingdoms,  yet  made  use  of  his  bull 
to  support  their  respective  claims.  Unable  to  termi- 
nate their  differences  by  force  of  argument,  they  at 
length  had  recourse  to  arms.  They  made  war  on 
the  Moluccas,  and  by  turns  expelled  each  other  from 
those  islands ;  but  the  Portuguese  at  length  gained 
possession,  and  an  end  was  put  to  the  contest. 

9.  The  Portuguese  having,  in  1581,  submitted  to 
the  Spanish  yoke,  Philip  II.  king  of  Spain,  attempt- 
ed to  degrade  their  character,  at  the  same  time,  con- 
cealing under  honourable  pretexts,  the  destructive 
means  he  employed  to  succeed  in  his  design.  His 
successor,  Philip  III.  scrupulously  adhered  to  the  po- 
licy of  his  father ;  he  suffered  the  Portuguese  to  be 
deprived  of  their  numerous  conquests,  which  had 
cost  them  rivers  of  blood,  and  procured  them  so  much 
power  and  glory.  Philip  IV.  weak  as  his  lather,  at- 
tacked, and  treated  with  contempt,  their  administra- 
tion, their  privileges,  their  manners,  and  every  thing 
they  held  most  dear.    A  conspiracy,  which  had  been 


102  THE  MARITIME  LAW        Part  T. 

Revoliition  of  Portug~al,  its  wars,  and  the  decline  of  its  marine. 

preparing,  with  unexampled  prudence,  for  three  years, 
burst  out  on  the  3d  of  December,  1640.  The  go- 
vernment of  the  king  of  Spain  was  ignominiously 
proscribed,  and  the  duke  of  Braganza,  under  the 
name  of  John  IV.  was  placed  on  the  throne  of  his 
ancestors.  Portugal  became  again  master  of  Brazil  j 
but  lost  the  island  of  Ceylon,  and  never  recovered 
any  of  its  possessions  in  India.  In  1688,  a  treaty  of 
peace  was  concluded  with  Spain,  in  which  the  latter 
acknowledged  the  independence  of  Portugal,  restor- 
ed its  ancient  possessions  in  Europe,  and  on  the 
coasts,  excepting  the  town  of  Ceuta  in  Africa,  which 
remained  to  the  Spaniards.  Notwitlistanding  this 
fortunate  event,  Portugal  has  not  recovered  from  the 
state  of  weakness  to  which  it  was  reduced  by  the 
Spanish  government,  by  continual  wars,  and  still  more 
by  its  commercial  connexions  with  England.  It  has 
not,  at  present,  a  twentieth  part  of  its  ships  of  war  re- 
maining for  the  protection  of  its  colonial  commerce. 
Its  political  existence  is  precarious,  and  upheld  only 
in  consequence  of  the  interest  which  the  great  powers 
of  Europe  have  in  preventing  it  from  becoming  a 
province  of  Spain. 


Chap.  I.  OF  EUROPE.  103 


Spain,  its  first  maritime  expeditions,  in  the  rcig^i  of  Ferdinand. 


Section  II. 

SPAIN. 

§  1 .  ANTECEDENT  to  the  reign  of  Ferdinand 
V.  the  history  of  Spain  offers  nothing  remarkable,  con- 
cerning its  marine.  This  prince,  born  with  an  im- 
measurable love  of  glory,  was  often  led,  by  his  ruling 
passion,  beyond  the  bounds  of  moderation  and  jus- 
tice. His  marriage  with  Queen  Isabella,  a  princess 
of  rare  merit,  united  the  crowns  of  Castile,  Leon, 
Arragon,  Navarre,  and  Granada.  All  these  king- 
doms, governed  with  great  political  ability,  and 
which  gave  him  a  preponderance  over  the  other 
powers  of  Europe,  were  not  sufficient  to  satisfy  his 
ambitious  mind.  His  views  were  more  extensive  : 
he  caused  ships  to  be  built,  by  which  he  might  ac- 
quire new  kingdoms,  and  the  empire  of  the  sea,  to 
which  he  aspired. 

2.  The  first  maritime  expedition  of  Ferdinand, 
was  directed,  in  1446,  against  the  Canary  islands,  to 
reduce  them  under  his  power.  He,  at  the  same  time, 
dispatched  twenty-five  ships  to  Guinea,  where  he 
established  a  very  advantageous  trade,  giving,  in  ex- 
change for  valuable  commodities,  shells,  esteemed 
by  the  inhabitants  of  that  country,  more  precious 
than  gold  or  silver,  as  they  imputed  to  these  marine 
productions,  the  power  of  preserving  them  against 
thunder.  These  ships  returned  richly  laden,  but  Fer- 
dinand derived  no  advantage  from  the  voyage,  as 
they  all  fell  into  the   hands  of  the  Portuguese,  who 


J 04  THE  MARITIME  LAW        Part  L 

America  disco\'ered  by  Columbus,  and  so  named  by  Vespucius. 

■^ ■< —  ■■?■——■  ■■—---■--  '        —     -  •  -^  ■■— —   ■»-- 

were  then  at  war  with  Spain.  About  the  year  1484, 
he  sent  a  considerable  iieet,  consisting  of  seventy- 
sail,  under  the  command  of  Gonsalvo  Hernandez  de 
Cordova,  called  the  great  captain,  to  the  aid  of  the 
king  of  Naples.  This  general  recovered  Calabria, 
and  wrested  the  city  of  Naples  from  the  hands  of  the 
French. 

3.  These  first  essays  of  the  marine  of  Ferdinand^ 
prepared  the  way  for  the  great  discoveries  made  dur- 
ing his  reign.  While  the  Portuguese  were  advancing 
along  the  coasts  of  Africa  and  Asia,  the  Spaniards 
discovered  and  conquered  the  West-Indies,  or  Ame- 
rica. Christopher  Columbus,  a  Genoese,  set  sail,  on 
the  3d  of  August,  1492,  from  the  port  of  Palos,  in 
Spain,  with  one  ship  and  two  brigantines,  which 
Ferdinand  and  Isabella  had  entrusted  to  his  com- 
mand. This  armament  cost  only  ten  thousand  du- 
cats. The  first  land  which  he  discovered,  on  the 
1 1th  of  October,  in  the  same  year,  was  Gudnaham\ 
one  of  the  Lucayos,  or  Bahama  islands,  to  which  he 
gave  the  name  of  Saint  Salvador.  He  afterwards 
discovered  the  islands  of  Cuba  and  Hispaniola.  A- 
mericus  Vespucius,  a  Florentine,  made  a  voyage  to 
America  in  1497,  and  claiming  to  be  the  first  who  dis- 
covered Terra-Firma,  he  gave  his  name  to  the  coun- 
try, since  called  America.(llO)*     Ferdinando  Cor- 

(110)  See  Ricerche  istoriche  critiche  circa  Ic  scoperse  (V America 
Vespucci  delSig.  Bartolozzi.  Elogio  d'Americo  Vespucci  del  Canova. 
Vita  del  Vespucci  del  Bandini, 

*  Alonso  de  OJeda,  who  had  accompanied  Columbus  inlils  second 
voyage,  was  the  commander  of  the  squadron^  on  board  oi"  which 


Chap.  I.  OF  EUROPE .  105 

Discoveries  of  Ferdinand  confirmed  by  the  Pope. 

tez,  in  1518,  and  Francis  Pizarro,  in  1525,  greatly 
extended  the  conquests  of  Spain  in  the  new  world. 
Long  voyages,  undertaken  with  success,  the  disco- 
very of  immense  countries,  separated  from  our  con- 
tinent by  a  vast  ocean,  tl^.e  conquest  of  several  king- 
doms, advantageous  establishments  on  the  coasts  of 
Africa,  in  the  Canaries  and  the  Indies,  the  subjection 
of  barbarous  and  unknown  nations,  and  the  inex- 
haustible treasures  acquired  by  the  crown,  immorta- 
lized the  reign  of  Ferdinand,  and  transferred  the  em- 
pire of  the  Indian  seas  to  Spain. 

4.  Ferdinand,  after  the  example  of  the  Portuguese, 
solicited  from  the  court  of  Rome,  a  bull,  granting 
him  a  full  title  to  all  the  conquests  made,  or  to  be 
made,  in  the  new  world,  on  condition  of  his  convert- 
ing to  the  Catholic  faith,  the  inhabitants  of  those  bar- 
barous countries.  Alexander  VI.*  by  a  bull,  dated 
at  Rome,  the  second  day  of  May,  1493,  gave  to  i  / 
Ferdinand  and  Isabella,  sovereigns  of  Castile  and 
Arragon,  the  new  world  which  had  just  been  dis- 
covered. It  was  under  his  pontificate  that  the  limits 
were  fixed  between  the  Portuguese  and  Spanish,  by 
dividing   the  Indian   islands,  then   discovered,   by 

Vespucci  served  in  a  subordinate  capacity.  See  Robertson's  Ame- 
rica, Book  II T. 

*  This  pontiff,  w  hose  ridiculous  pretensions  to  power  are  set 
forth  iii  this  curious  instrument,  was  tlie  most  infamons  wretch 
tJiat  ever  disgraced  humanity T. 

Vox.  I.  O 


106  THE  MARITIME  LAW        Part  L 

Ferdinand  attacks  the  Barbarj'  pirates. 

means  of  lines  corresponding  to  the  degrees  in  the 
heavens ;  assigning,  as  a  boundary  to  Spain,  a  meri- 
dional line,  drawn  from  pole  to  pole,  a  hundred 
leagues  west  of  the  Azores.  (1 11) 

5.  The  legal  property  in  the  seas  and  kingdoms  of 
the  two  Indies,  thus  granted  to  Ferdinand  by  the  pa- 
pal bull,  confirmed  his  acquisitions ;  and  he  now  turn- 
ed his  attention  to  the  shores  of  Africa.  The  Barbary 
pirates,  who  ravaged  the  coasts  of  Spain,  took  refuge 
in  the  harbour  of  Oran,  which  served  for  a  place  of 

(111)  The  fourth  article  of  this  bull,  is  In  the  following  words  ; 
"  Et  ut  tanii  negotii  provinciam  apostoUca  gratia  largitate  donati, 
"  liherius  tt  audaciuis,  assumatis  molu  propria,  non  ad  vestram,  vel 
"  alterius  pro  vobis  super  hoc  nobis  oblatce  petitionis  instantia??},  std 
"  de  nostra  viera  liheralitate,  et  ex  certa  scientia,  ac  de  apostolica 
"  potestatis  p/enitudi'ie,  omnes  insulas  et  terras  fir  mas,  imentas  etin- 
"■  veniendos,  detectas  et  detegendas  versus  occideniem  et  meridiem, 
"  fabricando  et  construendo  unam  lineam  a  polo  arctico  scilicet  sep- 
"  tentrione,  ad  polum  antarticum,  scilicet  meridiem,  (sive  terrce  fir- 
"  met  et  insulcE  invented,  et  inveniendx  sint  versus  Jndia?n,  aut  versus 
"  aliam  cpiamcuinque  partem,)  quae  Vniea  distet  a  cpialibet  insularum 
"  quce  vuigariter  nuncupantur,  de  losAzores,y Cabo  Verde  centum  leu- 
"  cis  versus  occidentem  et  meridiem,  per  alium  regem  aut  principem 
"  christianum  nonjuerintactualiterpossesscr,  usque  ad  diem  nativita' 
"  tis  doiflini  noslri  Jesu  Christi  proxime prceteritum  a  quo  incipit  an- 
"  nuspraesens  14-93,  quundo  juerint  per  nuncios  et  capitaneos  ves- 
"  tros  mventce  aliquce  predictarum  insularum ;  auctoritate  omnipoten- 
"  tis  Dei  nobis  in  Btiito  Fetro  concessa,  ac  vicariatus  Jesu  Christi 
"  qua  fun'^imur  in  terris,  cum  omnibus  illarum  dominiis,  civitatibus, 
"  casiris,  locis  etvillis,  juribusque,  €tjurisdictionibus,acpertinen~ 
"  tils  universis  nobis,  hccredisbu^que,'"  i^-c,  6'ec  Leibnitz  codex  jur- 
gent.diplom.  p.  165,  et  203.  Hieron  a  Monte,  trad,  de  fin.  regim- 
dor.  cap.  7.  §  8. 


Chap.  I.  OF  EUROPE.  107 


Conqiiest  of  Oraii. — Charles  V.  takes  Tunis. 


deposit,  and  an  asylum.  Cardinal  Ximenes,  arch- 
bishop of  Toledo,  undertook  to  exterminate  them. 
He  equipped  lor  that  purpose^  an  armament  ot  eighty 
ships,  three  gallies,  and  a  large  number  of  transports, 
with  ten  thousand  infantry,  and  four  thousand  cavalry. 
He  landed  in  Africa  without  opposition  ;  and  the 
city  of  Oran  was  taken.  Tiie  capture  of  the  place 
was  effected  with  so  much  expeditioii,  that  the  Span- 
iards considered  it  as  miraculous.  Another  naval  ar- 
mament was  dispatched,  at  the  same  time,  and  the 
Venetians  were  compelled  to  restore  the  places  ta- 
ken by  them,  which  were  dependencies  of  the  king- 
dom of  Naples.  Tiiese  two  expeditions,  attended 
with  such  rapid  and  happy  success,  gave  the  Span- 
iards a  great  preponderance  in  the  Mediterranean, 

6.  The  formidable  Barbarossa  having  succeeded, 
in  1535,  to  the  authority  of  his  brother  Horuc,  in  the 
government  of  Algiers,  seized  on  the  kingdom  of 
Tunis.  This  conquest  so  alarmed  the  christian  prin- 
ces, that  they  formed  a  league  against  the  power  of  an 
enemy  so  much  to  be  dreaded,  and  a  cruel  foe  to 
their  religion  and  dominions.  Charles  V.  of  Austria, 
who  had  succeeded  Ferdinand,  and  who  united  the 
crown  of  Spain  to  that  of  the  chief  of  the  Germanic 
empire,  put  himself  at  the  head  of  this  famous  coali- 
tion. The  fleet  of  the  confederates,  consisting  of 
three  hundred  ships,  set  sail  from  Cagliari,  in  Sar- 
dinia, the  place  of  rendezvous,  touched  on  the  25th 
of  June,  at  Porto  Farina,  six  leagues  from  Tunis,  at- 
tacked and  took  Fort  Goletta,  and,  soon  afterwards 


108  THE  MARITIME  LAW        Part  /. 


Failui'e  of  the  expedition  against  Algiers. 


gained  possession  of  Tunis.  Charles  V.  after  replacing 
the  lawful  king  on  the  throne,  and  compelling  Barba- 
rossa  to  seek  his  safety  in  flight,  prepared  to  return  to 
Europe.  He  touched  at  Trepano,  Palermo,  and 
Messina,  and  entered  Naples  in  triumph.  Anima- 
ted by  such  glorious  success,  the  emperor  was  desir- 
ous, in  1540,  to  conduct  a  similar  enterprise  against 
Algiers  j  but  his  measures,  not  being  so  well  con- 
certed as  in  the  former  expedition  against  Tunis,  it 
was  not  attended  with  equal  success.  Having,  incon- 
siderately, put  to  sea  with  a  numerous  fleet,  at  an  un- 
favourable time,  he  had  to  contend  with  winds  and 
tempests.  The  ships,  buffetted  by  a  furious  storm, 
were  dashed  against  each  other,  or  broken  to  pieces 
on  the  rocks ;  others,  with  their  crews,  were  swal- 
lowed up  in  the  waves.  One  hundred  and  fifty  large 
ships,  and  fifteen  gailies,  perished  by  this  disastrous 
incident,  and  Charles,  with  the  utmost  difficulty, 
reached  Carthagena  in  safety,  with  the  wreck  of 
his  fleet.  His  great  exertions,  and  lofty  pride,  pro- 
cured him  only  empty  renown,  the  exhaustion  of  his 
dominions,  and  weariness  of  life. 

7.  Philip  II.  son  of  Charles,  who  succeeded  his  fa- 
ther as  king  of  Spain,  had  little  success  in  his  expe- 
ditions against  the  Barbary  powers.  His  marine  had 
not  yet  recovered  from  the  losses  it  had  sustained  un- 
der his  predecessor.  Furious  with  indignation  against 
Queen  Elizabeth,  and  eager  to  take  vengeance  on 
that  princess,  for  uniting  with  the  Dutch,  who  had 
shaken  off  the  Spanish  yoke,  Philip  undertook  the 


vBr 


Chap.  I.  OF  EUROPE.  109 

Pliilip  II-  attempts  to  invade  England. — Destruction  of  tlie  Arniada. 

conquest  of  England.  During  three  years,  he  em- 
ployed all  the  ship  carpenters  ol  Spain,  Portugal,  and 
of  Naples  and  Sicily,  which  then  belonged  to  Spain, 
in  building  ships  of  extraordinary  size  and  force. 
This  fleet,  which,  before  it  left  the  port,  had  re- 
ceived tlie  title  of  invindhlc  armada^  put  to  sea  in 
1588.  It  consisted  of  one  hundred  and  thirty  ships, 
nearly  onehundred  of  which  were  the  largest  that  had 
yet  appeared  on  the  ocean.  Twenty  caravels,  or  light 
ships,  followed  the  fleet,  manoeuvred  and  fought  under 
its  wings;  but  the  ships  were  so  heavily  armed,  and  so 
badly  managed,  that  they  would  scarcely  move,  take 
the  wind,  go  about,  or  obey  the  helm  in  a  storm. 
The  sailors  were  as  dull  as  the  ships  were  heavy,  the 
pilots  almost  as  ignorant  as  the  sailors,  and  the  admi- 
ral, the  duke  de  Medina-Sidonia,  who  possessed  no- 
tliing  but  birth  and  fortune,  was  destitute  of  energy 
and  experience. 

8.  Elizabeth,  believing  in  the  weakness  of  her 
enemies,  and  their  want  of  nautical  skill,  rested  her 
hopes  of  victory  on  their  inexperience.  The  Eng- 
lish avoided  being  boarded  by  their  heavy  machines, 
used  their  artillery  with  effect,  burned  several  of  the 
ships,  took  the  galleons,  and  disabled  the  rest.  A  fu- 
rious storm  arose  during  the  fight,  drove  a  number 
of  the  Spanish  ships  on  the  western  coast  of  Scot- 
Jand,  and  others  on  the  Irish  coast,  vv'hcre  they  were 
taken  or  sunk.  Of  this  invincible  Armada,  scarcely 
twenty  ships  returned  to  Spain,  where  this  disaster 
spread  a  consternation  and  despondence,  from  which 


no  THE  MARITIME  LAW        Parti. 

The  Spanish  marine  neglected. — Philip  V.  attends  to  its  revival. 

the  nation  never  recovered.  By  the  loss  of  an  ar- 
mament which  had  cost  so  much  preparation  and 
expense,  and  which  exhausted  its  revenues  and  tor- 
ces,  Spain  became  completely  cast  down  and  dis- 
heartened.(112) 

9.  The  Spanish  marine  continued  to  be  wholly 
neglected  until  the  reign  of  Philip  V.  This  prince 
had  no  sooner  dispersed  the  enemies  that  opposed  his 
advancement  to  the  throne,  than  he  meditated  the 
restoration  of  the  marine,  which  at  that  period  was 
so  weak,  that  the  Barbary  corsairs  carried  off  with 
impunity,  merchant-ships,  captured  at  the  mouths  of 
the  Spanish  harbours.  He  built  some  ships,  purchas- 
ed others  of  foreigners,  and  formed  establishments 
favourable  to  navigation.  Philip  V.  was  soon  able 
to  send  out  two  cruising  squadrons,  one  to  the  Me- 
diterranean against  vessels  sailing  under  the  imperial 
flag  ;  the  other,  against  the  corsairs  and  smugglers. 


(112)  From  a  hatred  of  Philip  II.  who  was  regarded  as  a  common 
enemy,  all  Europe  applauded  the  glorious  success  of  Elizabeth. 
The  Venetians,  on  receiving  the  news  of  the  defeat  of  this  famous 
and  unfortunate  armada,  exclaimed.  Oh  the  Donna,  se  fosse  Christuna. 
Oh  what  a  woman,  if  she  were  but  a  christian  !  All  had  in  their 
mouths,  these  words :  Omne  malum  ab  Hispania,  omne  honum  ab 
Aquilone.  (Me?«o?Vs  of  Birch.)  A  medal  was  struck  on  this  occasion, 
in  England,  on  which  the  Spanish  fleet  was  seen  ^y'mg,  under  full 
sail,  and  these  words,  venit,  vidit,  vicit.  Another  medal,  representr 
ed  the  Spanish  fleet  in  disorder,  and  their  vessels  burnt,  with  the 
following  legend.  Dux  femina  facti.  The  most  remarkable  one 
was  that  in  which  the  ships  are  seen  beaten  by  the  storm,  and  run- 
ning against  each  other,  with  this  noble  and  pious  inscription :  Affia- 
vit  Deus,  et  dissipaniur. 


Chap.  I.  OF  EUROPE.  in 

The  Spanish  navy  auijmented  l)jf  Philip  V. 

He  armed,  at  the  same  time,  a  large  fleet  of  ships, 
built  in  the  ports  of  Cadiz,  Malaga,  Carthagena,  and 
Alicant.  In  1718,  his  marine  consisted  of  fifty  ships 
of  the  line,  dispersed  over  the  seas  of  Sicily  and  Sar- 
dinia, of  bomb-ketches,  fire-ships,  and  batteaux,  for 
the  purpose  of  landing  troops  to  take  possession  of 
the  island  of  Sardinia.(i  13)  He  had  besides  a  pow- 
erful squadron  in  the  Indian  seas,  to  check  pirates, 
and  five  ships  of  war  to  convoy  merchant  vessels  from 
New  Spain. 

10.  In  1733,  the  Spanish  marine  being  employ- 
ed in  Africa,  in  the  recapture  of  O  ran,  and  in  Italy, 
the  Catholic  king  was  obliged  to  form  new  arma- 
ments ;  but  during  this  war  his  ships  were  employed 
in  transporting  troops  into  Italy,  and  in  voyages  to 
the  Indies.  After  peace  was  concluded  with  the  em- 
peror, another  war  arose  with  England,  that  gave 
the  utmost  activity  to  the  fleets  of  Spain.  New 
Georgia,  Porto-Bcllo,  St.  Augustin,  and  Carthagena, 
in  America,  became  the  scenes  of  action.  The  defence 
of  the  latter  place,  will  ever  be  considered  in  his- 
tory as  one  of  the  most  illustrious  monuments  of  Span- 
ish valour.  In  the  Mediterranean  there  occurred  on- 
ly the  engagement  off  Toulon,  in  171-4,  which  gain- 
ed the  Spanish  Admiral,  Don  Pedro  Navarro,  the 
pompous  title  of  Marquis  de  Victoria. 

1 1 .  The  Spanish  marine,  having  no  further  occa- 
sion to  signalize  itself,  remained  inactive  fi^r  a  lon^ 


a 


(113)  Sqq  my  geotrraphival, polUical,  and  natural  histort/ of  Sf::- 
dinia,  vol.  1,  page  161,  &c. 


112  THE  MARITIME  L AAV        Part  L 

Decay  of  the  Spaiiish  mai-ine — its  rmval  under  Fei'dinand  VI. 

period,  and  gradually  fell  to  decay.  The  Marquis 
d'Ensenada,  being  made  minister  under  Ferdinand 
VI.  exerted  himself  to  raise  it  from  a  state  of  ruin. 
He  procured  English  shipwrights,  French  architects 
and  geometricians,  formed  schools,  fortified  the  har- 
bours, filled  the  dock-yards  and  arsenals,  and  made, 
or  improved,  other  establishments,  connected  with 
this  great  object.  The  disgrace  of  this  minister  was 
not  felt  in  the  department  which  he  quitted.  They 
continued  to  work  and  build  ships,  and  when  Charles 
III.  ascended  the  throne  of  Spain,  the  marine  was  in 
a  prosperous  state. 

12.  According  to  the  representation  given  by  the 
learned  M.  Bourgoing,(ll4)  it  appears,  that  after  the 
peace  which  terminated  the  disastrous  war  of  1761, 
Spain  had  only  thirty-seven  ships  of  the  line,  and 
thirty  frigates.  In  1770,  she  possessed  forty-one  ships, 
from  58  to  112  guns,  twenty-two  frigates,  eight 
laro-e  hoys,  nine  xebecks,  and  twelve  smaller  vessels 
of  war,  amounting,  in  the  whole,  to  one  hundred  and 
two  vessels  of  all  sizes.  In  1774,  she  had  sixty- 
four  ships  of  the  line,  eight  of  them  three-deck- 
ers, twenty-six  frigates,  nine  xebecks,  and  tvventy- 
Qio-ht  smaller  vessels  of  war;  in  all,  one  hundred  and 
forty-two.  In  1778,  Spain  reckoned  sixty-seven  ships 
of  the  line,  thirty-two  frigates,  besides  other  vessels, 
making  in  the  whole  one  hundred  and  sixty-three ; 
and  at  the  end  of  the  war,  notvv^ithstanding  all  the 


(114)  Tahkan  de  V Europe  Moderne,par  M.  Burgolng,  torn.  2, p. 
128. 


Chap.  I.  OF  EUROPE.  113 


Stute  of  the  Spanish  marine. — HoUiiiiA 


losses  slie  sulfered,  she  retained  nearly  the  same  num- 
ber. At  the  close  of  the  year  1792,  when  war 
was  declared  against  France,  she  possessed  eighty 
ships  ot  the  line,  six  of  which  were  wholly  inca- 
pable of  service,  and  fourteen  hardly  fit  for  sea.  The 
war  against  the  French  republic  has  not  been  injurious 
to  her  marine.  Tne  present  contest  with  England, 
which  remains  to  be  terminated,  will  leave  her  many 
losses  to  repair  ;  and  the  Spanish  government  is  now 
engaged,  with  activity,  in  rendering  its  marine 
capable  of  seconding  the  efforts  of  France  against 
the  usurpations  of  their  common  enemy. 

Section  III. 

HOLLAND. 

§  1 .  HOLLAND  is  nothing  more  than  a  bank 
of  band  and  mud,  raised  by  accident,  and  which  ac- 
cident mav,  at  any  time,  destroy.  The  situation  of 
its  sunken  land,  below  the  level  of  the  sea,  has  oblig- 
ed the  inhabitants  to  oppose  the  violence  ot  the 
waves,  by  dikes,  to  dig  canals  in  every  direction, 
lanje  enoufjh  to  faciHtate  internal  communication, 
and  draw  off  the  stajrnant  waters  which  covered 
its  surface.  Familiar  with  water,  the  Hollanders  have 
been  compelled  to  seek  their  chief  subsistence  from 
the  sea.  Necessity,  which  first  made  them  fishermen, 
soon  taught  them  how  to  cure  and  preserve  their 
fish,  to  make  them  an  object  of  commerce,  procure 
in  exchange  from  neighbouring  countries,  what  they 

Vol.  I.  P 


114  THE  MARITIME  LAW        Part  I. 

Industry  of  the  Dutch  ;  progress  of  their  commerce. 

wanted  in  their  own,  and  thus  augment  the  pleasures 
of  life.  The  riches  which  this  industry  brought  in- 
to the  state,  enabled  them  to  pursue  other  branches 
of  trade  that  opened  new  sources  of  wealth.  The 
strength  of  Holland  increased  with  her  opulence ,  she 
dared  to  take  arms  to  obtain  her  freedom,  and  she  suc- 
ceeded in  the  attempt.  Commercial  and  industrious, 
she  knew  how  to  create,  at  the  same  time,  territory 
and  liberty,  commerce  and  colonies,  a  useful  navi- 
gation and  a  formidable  marine.  Emerging  by  the 
force  of  genius  from  the  bosom  of  the  ocean,  she  seem- 
ed to  have  more  right  than  any  other  power  to  rule 
over  its  waves. 

2.  The  decay  of  the  Spanish  marine,  occasioned 
by  the  many  losses  which  it  sustained  under  Philip 
II.  and  by  multiplied  and  ill  concerted  expeditions, 
transferred  the  sceptre  of  the  sea  to  the  hands  of  the 
Dutch.  The  pride  of  Spain  could  not  have  been  bet- 
ter humbled  than  by  the  prosperity  of  a  people  whom 
its  oppressions  had  compelled  to  throw  off  the  yoke 
it  had  imposed.  Having  formed  their  country  into 
a  federal  republic,  the  Dutch,  stimulated  by  revenge 
and  by  their  wants,  commenced  privateering,  and 
formed  a  marine  at  the  expense  of  the  Spanish,  Whom 
they  every  where  beat,  and  of  the  Portuguese, 
whom  they  detested.  France  and  England,  who 
saw  nothing  in  the  progress  of  this  rising  republic, 
but  the  humiliation  of  the  Spanish  monarch,  assisted 
the  Dutch  to  preserve  their  conquests  and  spoils,  the 
whole  value  of  which  was  not  then  known.    Thus 


Chap.  I.  OF  EUROPE.  i  ]  5 

Greatness  and  superiority  of  tlic  maritime  power  of  Holland. 

the  Dutch  gradually  secured  their  establishments 
wherever  they  wished  to  carry  tlieir  arms,  and 
strengthened  themselves  in  their  new  acquisitions, 
before  other  nations  became  jealous  of  their  power. 
By  their  industry,  they  gradually  gained  possession  of 
all  the  commerce  of  that  age  ;  and,  by  means  of  their 
squadrons,  became  masters  of  every  sea. 

Z .  The  power  of  Holland  soon  essayed  its  strength, 
and  made  itself  known  in  the  political  world,  by  its 
energy,  its  economical  resources,  and  its  good  for- 
tune. The  glory  of  Spain  and  Portugal,  eclipsed 
on  the  ocean,  disappeared  before  her  fleets.  From 
the  suppliant  she  became  the  ally  of  France.  The  for- 
ces which  she  displayed  abroad  were  the  fruits  of 
her  maritime  exploits.  The  riclies  acquired  fro'm  the 
Spanish  and  Portuguese  in  Asia,  contributed  to  sup- 
port her  mighty  armaments.  Her  seamen  appeared 
like  conquerors  on  those  distant  coasts,  and  took  pos- 
session of  the  most- advantageous  positions.  If  Hol- 
land did  not,  at  once,  snatch  from  her  enemies  all  the 
commerce  of  those  opulent  regions,  she  strengthen- 
ed herself  there  m  such  a  manner,  as  to  indicate  that 
preponderance  which  she  eventually  obtained.  She 
has  abused  this  ascendancy  by  rendering  the  com- 
merce exclusive,  by  seizing  on  the  Spice-Islands,  and 
monopolizing  the  spice-trade. 

4.  By  its  maritime  prosperity,  this  republic  was  in  a 
situation  to  enter  into  close  connections  with  the  north- 
ern powers,  and  to  exercise  great  influence  in  that 


116  THE  MARITIME  LAW        Part  J . 


Influence  of  Holland  among  the  nortliem  powers  of  Europe. 


quarter  of  Europe.  In  consequence  of  these  rela- 
tions and  this  intluence,  it  lias,  morf  than  once,  be- 
come the  guarantee,  or  armed  mediator,  in  the  wars 
of  tne  north  ;  and  it  has  always  retired  with  the  ho- 
nour and  the  advantage  of  having  preserved  an  equi- 
librium, and  a  mutual  independence  between  these 
nortiicrn  powers.  This  wise  and  generous  policy 
enabled  Holland  to  save  Denmark,  at  the  brink  of 
ruin,  under  Frederick  HI.  to  repress  the  turbulent 
ambition  of  Charles  Gustavus,  by  a  maritime  diver- 
sion, that  raised  Poland,  just  ready  to  sink  under  his 
power;  to  secure  to  Dantzick  the  condition  it  enjoys 
to  the  present  day,  and  to  produce  those  circumstan- 
ces which  led  to  the  peace  of  Oliva,  in  1760.  Den- 
mark was  desirous  of  attacking  Sweden  and  the  house 
of  Holstein-Gottorp.  Holland  knew  how  to  check, 
by  similar  means,  this  spirit  of  usurpation,  and  to  re- 
establish the  balance  among  the  northern  powers,  in 
1700,  by  the  treaty  of  Traventahl. 

5.  This  republic,  led  astray,  by  the  war  of  succes- 
sion, froni  its  only  true  policy,  gradually  lost  all  its 
influence  in  the  north  of  Europe,  while  it  acquired 
none  in  the  south.  Spain,  claimed  by  the  house  of 
Austria,  and  almost  wrested  from  Philip  V.  was  about 
to  reunite,  on  the  brow  of  Charles  VI.  the  crowns 
worn  by  Charles  V.  The  English  who  saw,  with  jea- 
lousy, that  Holland  disputed  with  them  the  empire  of 
the  sea,  drew  her  into  that  famous  coalition,  and  suc- 
ceeded in  overwhelming  her  with  debt.    She  dearly 


Chap.L  OF  EUROPE.  117 


Holland  takes  part  in  tliewarsof  die  south. — Decay  of  her  power. 


purchased  the  barrier  treaty,  in  1709.  She  was  after- 
wards repayed  with  ingratitude  by  the* court  of  Vien- 
na, and  compelled  to  sign  the  treaty  of  1715,  which 
that  court  has  since  trodden  under  foot.  Eng^land,  bv 
taking  on  itself  two-thirds  of  the  maritime  expenses, 
and  throwing  upon  Holland  the  same  proportion  of 
the  expenses  ot  the  land  service,  so  lar  diminished 
the  naval  forces  ot  that  republic,  while  its  own 
were  augmented  in  equal  proportion.  "  From  that 
*'  time,"  says  the  judicious  author  of  the  work,  enti- 
tled. The  Jf'cal/h  of  iiolland,  "  the  Dutch  did  noth- 
"  ing  worthy  of  the  maritime  reputation  they  had 
"  acquired.  In  17  12,  their  colonies  v.  ere  laid  under 
"  contribution  by  the  French  ;  the  Swedes  captured 
"  their  merchant  ships,  without  any  appearance  of 
"  opposition  on  the  part  of  the  republic.  It  was  not 
"  till  1715,  that  it  joined  the  English  fleet  of  twenty 
"  sail,  with  twelve  ships  of  war,  in  order  to  protect 
"  the  commerce  of  the  two  nations  in  the  Baltic,  per- 
"  petually  harrassed  by  the  Swedes,  who,  in  the  war 
"  against  Russia,  continued  to  seize  all  vessels  bound 
*'  to  that  country.  The  Dutch  had  even  to  suffer 
**  from  the  Algcrines.  In  1721,  it  was  calculated 
**  that  those  pirates  had  taken  more  than  torty  valu- 
**  able  ships,  with  their  cargoes,  worth  above  six 
"  millions,  besides  nine  hundred  seamen,  reduced  to 
"  slavery."  From  this  period,  the  fleets  ot  Holland 
arc  no  more  to  be  seen,  and  the  excellent  marine  disci- 
pline of  the  Batavians  has  fallen  into  neglect.  A  \'an 
Tromp,  a  Ruy ter,  or  EvertsoD;,  has  not  again  appear- 


U^ 


118  THE  MARITIME  LAW        Part  L 


1 


Pai-allel  between  England  and  France. 


cd  ;  England,  alone,  with  her  squadrons,  covers  eve- 
ry sea,  where  she  rules  with  the  most  disgusting  tyran- 
ny.(115) 


ARTICLE  V. 


Parallel  between  England  and  France,  in  regard  to 
their  Claims  to  the  Empire  of  the  Sea.^ 

§1.  IN  this  article  will  be  comprised  all  that 
was  intended  to  be  said  of  England  and  France, 
in  order  to  bring  into  comparison  the  spirit  by 
which  these  two  powers  have  long  been  actuated. 
At  the  same  time,  I  shall  submit  to  the  judgment  of 
the  reader,  the  inordinate  pretensions  of  the  first. 


(115)  See  La  poUtiques  de  tons  les  Cabinets  de  V Europe,  with  the 
learned  notes  of  M.  Segur,  the  elder,  vol.  2,  from  which  the  above 
facts  have  been  taken. 

*  It  may  be  proper  to  inform  the  reader,  that  the  following  article, 
as  well  as  tlie  former  part  of  this  chapter,  excepting  twelve  pages 
has  been  added  by  the  author,  since  the  former  edition  of  his  work, 
printed  in  1796.  If,  instead  of  a  partial  discussion  of  the  political 
conduct  of  two  great  and  rival  nations,  our  author  had  confined 
liimself  to  a  concise  and  luminous  description  of  the  progress  and 
present  state  of  their  marine,  it  would  not  have  been  thought  an 
unnecessary  digression  from  the  subject  of  his  work.  The  zeal,  not 
to  say,  partiality,  which  he  has  manifested  in  the  cause  of  France, 
induces  a  suspicion,  that  he  has  not  been  careful  to  hold  the  balance 
with  an  even  hand,  nor  to  preserve  that  spirit  of  moderation  and 
justice  which  belongs  to  a  neutral  character T. 


Chap.L  OF  EUROPE.  119 


England  has  abused  her  power. — The  ancient  Britons. 


who,  in  contempt  of  all  laws,  has,  for  ages,  used  eve- 
ry means  to  obtain  the  empire  of  the  sea,  and  the 
moderation  of  the  second,  who  has  always  resisted 
those  pretensions,  and  has  endeavoured  to  maintain 
the  freedom  of  navigation  by  an  uniform  opposition 
to  her  rival.  England  has  consulted  nothing  but  her 
maritime  strength,  and  in  proportion  as  she  has  felt 
its  greatness,  she  has  thought  herself  authorised  to 
engage  in  every  enterprise.  So  absolute  has  this  pow- 
er at  length  appeared  to  her,  that  she  has  believed 
herself  exempted  from  the  observance  of  the  most 
solemn  engagements,  and  of  the  most  sacred  princi- 
ples of  the  universal  law  of  nations.  History  will  be 
consulted  in  search  of  facts  to  support  the  truth  of 
these  assertions,  and  to  enable  us  to  form  a  closer 
comparison  between  the  conduct  of  the  two  nations, 
from  which  the  most  important  conclusions  will  flow. 

•_'.  The  ancient  Britons,  dwelling  in  caverns,  with 
which  the  interior  of  their  island  abounded,  were  not 
in  a  situation  to  oppose  any  resistance  to  the  invasion 
of  the  Romans,  under  the  command  of  Ca3sar.(ll6) 
According  to  Pliny,  (117)  they  possessed,  at  that  time, 

(I  IG)  Jul.  Caesar,  debell.  gall.  lib.  4,c.  22. 

(117)  Plin.hist.nat.  lib.  4,  c.  3.  "  England,"  says  the  Abbe  Ray- 
nal,'"  finding  herseir at  tl;e  present  day,  the  first  niarilime  power, 
"  rca.liiy  imagines  that  she  has  always  possessed  the  empire  of  the 
"  se;i.  At  one  time,  her  maritime  superiority  is  traced  as  far  back, 
"  as  the  lime  of  Julius  Caesar;  at  another,  the  date  of  her  domin- 
"  ion  over  the  sea  is,  at  least,  in  the  ninth  century.  At  some  future 
"  day,  perhaps,  the  Corsicans,  who  are  of  no  consequence  at  pre- 


120  THE  MARITIME  LAW        l^art  I. 

Offa,  king  of  Mercia,  the  first  who  claimed  the  empire  of  the  British  sea. 
■■ —  — 

only  light  canoes,  made  of  osier,  and  lined  with 
leather,  similar  to  those  still  used  by  the  Greenland- 
ers.  The  Saxons,  the  Jutlanders,  the  Angles,  and 
other  northern  nations,  who  successively  ravaged 
their  coasts,  and  who  olten  pursued  the  natives  into 
their  gloomy  retreats,  did  not  inspire  them  with  the 
idea  ot  opposing  these  attacks,  by  armed  ships.  The 
Angles  finally  succeeded  in  establishing  themselves 
permanently  in  the  greater  part  of  the  island,  and 
gave  their  name  to  the  country,  which  they  divided 
into  seven  kingdoms. 

3.  OfFa,  king  of  Mercia,  the  most  powerful  prince 
in  the  heptarchy,  distinguished  for  the  wars  he  carri- 
ed on  against  the  neighbouring  kings,  and  for  his 
solicitude  to  maintain  a  considerable  fleet  to  guard 
the  coast,  appears  to  be  the  first  who  had  any  pre- 
tensions to  the  empire  of  the  sea.  He  disputed 
it  with  Charlemagne ;  and  this  great  monarch, 
who  had  not  time  to  form  a  marine,  seeing  the 
advantages  to  be  derived  from  the  naval  forces  of 
Offa,  in  oruardins  his  dominions  a2:ainst  the  attacks 
of  the  Normans,  who,  with  powerful  squadrons, 
sometimes  with  fleets  of  120  and  200  sail,  exercised 
piracy,  and  every  kind  of  robbery,  on  the  sea,  did  not 
disdain  the  alliance  of  the  Mercian  king.     Char- 

"  sent,  when  they  become  a  maritime  nation,  will  inscribe  in  llieir 
"  records,  that  they  have  always  possessed  the  dominion  of  the 
"  Mediterranean  sea.  Such  is  Uie  vanity  oi  man ;  it  seeks  to  ag- 
"  grandize  its  nothingness  in  past,  as  well  as  in  future  times." 

Tableau  de  L' Europe,  p.  70. 


Chap.  L  OF  EUROPE.  12 1 


Maritime  power  of  Charlemafpne. 


iemagne  was  soon  in  a  situation  to  send  succours 
to  Offa,  and  to  make  himself  feared  on  the  ocean. 
(118)  Like  an  able  politician,  he  perceived  that  1 
an  empire,  whose  limits  were  so  extensive,  could  / 
not  be  supported  without  a  well  organized  marine. 
He  built,  and  carefully  maintained  vessels  to  cruise  at 
the  mouths  of  the  rivers,  along  the  coasts  of  France, 
Germany,  and  Italy,  and  to  guard  all  the  maritime 
frontiers  of  his  dominions,  from  one  sea  to  the  other. 
By  the  prudence  of  his  measures,  he  defeated  the 
ambitious  schemes  of  Offa,  and  beat  the  Saracens 
near  the  islands  of  Sardinia,  Corsica,  Majorca,  and 
Minorca.  He  sent  his  son  Pepin,  with  a  formidable 
fleet,  against  the  Venetians,  who  conquered  them, 
and  by  means  of  his  squadrons,  he  made  the  French 
flag  every  where  respected. 

4.  One  of  the  successors  of  Offa,  the  proud  Edgar, 
who  maintained  a  numerous  fleet  to  guard  the  coasts, 
imagined  himself  the  absolute  master  of  the  ocean. 
He  assumed  the  pompous  title  of  Emperor  and  Lord 
of  all  the  kings,  and  master  of  all  the  islands  of  the 

(118)  The  Englisli  author';,  themselves,  are  compelled  to  agree, 
that  Charlemagne  had  the  superiority  in  the  British  seas.  See.Zerf- 
iard's  History  of  the  English  Marine,  Vol,  /.* 


•  See  Henry's  Histori'  of  Great  Britain,  Book  II.  Chap.  II T. 


122  THE  MARITIME  LAW        Fart  I. 

Pride  of  Edgar. — Moderation  of  Canute. 

British  seas.(  11 9)  Edgar,  being  one  day  at  Ches- 
ter, embarked  on  the  river  Dee,  and  his  inordinate 
vanity  suggested  the  idea  of  compelling  eight  princes, 
his  tributaries,  to  row  the  bark,  while  he  directed  the 
helm  ;(120)*  a  naval  triumph  without  example  in  the 
history  of  Europe.  This  instance  of  folly  verified 
the  old  maxim,  that  the  triumphs  of  pride  are  always 
insulting  to  humanity.(l2l)  Swaine,  king  of  Den- 
mark, having  driven  Ethelred  II.  from  the  English 
throne,  was  proclaimed  in  1014,  king  of  the  country, 
where  he  died  in  1015.  Canute  the  Great  succeed- 
ed his  father,  and  united  in  his  person  the  crowns  of 
Denmark,  Norway  and  England.  His  heart  was  not 
inflated  with  those  vain  and  ridiculous  pretensions  to 
the  empire  of  the  sea,  so  much  cherished  by  the 
kings  of  England.  Uninfluenced  by  that  insulting 
pride,  so  natural  to  them,  he  observed  an  opposite 
conduct.  His  courtiers,  accustomed  to  flatter  their 
sovereigns  on  the  maritime  empire  which  they  were 
disposed  to  assume,  attempted  one  day  to  persuade 
Canute  that  his  dominion  over  the  sea  was  unbound- 
ed. This  prince,  without  appearing  to  be  displeased 
at  this  flattering  falsehood,  invited  them  to  a  fishing 

(119)  Alti  tonantis  Dei  largiflua  clcmeniia,  qui  est  lex  regum,  Egv 
Edmrdus,  Anglorum  Basikus,  omniumque  regujn,  insularum,  oceaniqvc 
Britanniani  circumjacenlis,  cunciarum  natinnrtvi  qw"  infra  eum  indu- 
duniur,  dominus,  6fc.  Chart,  eccl.  Wigorn.  ad  an.  964.  Selden,  Merc 
Clausum,p.  137. 

(120)  Chronic.  Saxon,  p.  1.37.      ^  Hume,  vol.  \,p.  1 13. 

(121 )  M.  de  Sainte  Croix,  de  la  puissance  nuxak  ds  I'Angleterre. 


Chap.  I.  OF  EUROPE.  123 

Canute  reproves  his  courtiers  for  their  flatter}-. — William  I. 

c 

party ;  after  which,  he  directed  a  sumptuous  repast 
to  be  prepared  on  the  borders  of  the  sea,  and  to  be 
serv-ed  up  at  the  tide  of  flood.  The  guests  soon  per- 
ceiving the  waves  to  approach  them,  left  their  places; 
the  king  remained  alone,  and  commanded  the  sea  to 
retire.  The  waves  still  continuing  to  rise,  he  pretended 
to  be  in  a  rage,  and  exclaimed,  "  AVaves  of  the  ocean, 
''  is  it  thus  that  you  respect  your  master .?"  Then  turn- 
ing to  the  courtiers,  he  added,  with  a  smile  of  con- 
tempt, "  He  alone  who  holds  in  his  hands  the  ut- 
"'  most  limits  of  the  world,  has  a  right  to  command 
"  the  elements,  and  to  prescribe  bounds  to  the 
f'  ocean."(122) 

6.  William  I.  duke  of  Normandy,  surnamed  the 
Bastard,  on  account  of  his  birth,  and  the  Conqueror, 
for  having  subdued  England,  made  himself  master 
of  that  country  in  1066,  after  the  defeat  and  death  of 
Harold,  the  last  of  the  Saxon  kings.  To  this  prince 
England  owes  her  grandeur  and  power.  The  Eng- 
lish, before  barbarians,(123)  were  softened  by  the 
manners  of  the  French,  whom  they  now  detest  ; 
though  to  them  they  are  indebted  for  their  glory  and 

(122)  Unde  rex  resiliens  neminem  regi  nomine  dipimn  esse pronun- 
ciaTit,  prfcter  eum  Unicum,  cujus  nutum  tarn  more  quam  terra  ohser- 
varet.  Florileg.  adan.  1035.  Selder,  Mare  Clausnm,  lib.  2,  cap.  12.* 

(123)  The  Englisli,  at  this  pcriuJ,  were  not  unlike  those  describ- 


Sce  ako  Iluinc's  llistorj  of  England,  vol.  1,  p.  loi2.. 


J 24  THE  MARITIME  LAW        Parti. 

William  Duke  of  Normandy  :  His  ingratitude. 

prosperity.  William  could  not  have  gained  posses- 
sion of  his  new  kingdom,  without  the  assistance  of 
Pliilip  I.  king  of  France,  and  Baldwin,  count  of 
Flanders,  to  whom  he  was  bound  by  the  ties  of 
eternal  gratitude.  But  this  fortunate  and  powerful 
vassal,  as  it  too  often  happens,  soon  forgot  his  bene- 
factors. He  blushed  to  owe  his  crown  to  them,  and 
he  transmitted  to  his  successors  those  seeds  of  aver- 
sion and  hatred,  which  have  since  continued  to  shoot 
and  expand. (124.) 

7.  The  successors  of  William  neglected  the  ma- 
rine so  much,  that  when  Richard  I.  for  his  courage 
surnamed  C(cur  de  Lion^  undertook  his  crusade  to 


ed  by  Horace.  The  Roman  poet,  after  invoking  the  muse  Calliope, 
thus  expresses  hirriselt : 

Utrumqne  mecum  vos  eritis,  libens 
Insantentem  navita  Bosphormn 
Tentabo,  el  arenies  arenas 
Lltioris  Asyrii  Viator : 
Visum  Britannos,  hospitibus  feros. 

Lib.  3,  Ode  4. 

(124)  Froissart  remarks,  that  in  his  time,  (1337 — 1410)  the  Eng- 
lish felt  such  extravagant  anim.osit)^^  agamst  France,  that  man)-  gen- 
tlemen covered  one  e}'e  with  a  piece  of  black  cloth,  in  consequence 
of  avow  they  had  made  never  to  see  with  that  eye,  until  they  had 
signalized  themselves  by  some  memorable  exploit  against  France. 
This  is  another  trait  of  the  ferocity  remarked  by  Horace  i'l  the  pre- 
ceding note.* 


Yot  this  was  near  300  years  afto"  tjie  Norman  conquest T. 


Chap.  I.  OF  EUROPE.  125 


Richard  I. — Naval  exploits  of  King  John. 


Palestine,  he  was  obliged  to  have  recourse  to  foreign- 
ers, for  ships  to  transport  his  followers.     John,  sur- 
named  Lack-land,  succeeded  his  brotlier  Richard, 
and  maintained  no  larger  naval  force.    Like  his  bro- 
ther, he  was  under  the  necessity  of  soliciting  the 
count  of  Flanders  to  fight  against  Philip  Augustus, 
who  had  collected  in  the  Seine,  a  fleet  of  seventeen 
hundred  sail.(125)   The  counts  of  Boulogne  and  Sal- 
isburv,  who  commanded  the  English  naval  forces, 
learning  that  the  French  fleet,  lying  at  anchor  in  the 
harbour  of  Dam,  and  alone:  the  coast  near  the  citv, 
w^ere  deserted  by  theirsoldiers,  w^ho  had  landed  for  the 
sake  of  plunder,  attacked  and  boarded  the  ships  with- 
out opposition,  cut  their  cables,  brought  ofl'three  hun- 
dred of  them  laden  with  provisions,  and  burnt  one 
hundred  more.     This  victory,  due  only  to  the  assist- 
ance and  the  boldness  of  the  count  of  Flanders,  the 
enemy  of  Philip,  rendered  John  so  intoxicated  with 
pride,  that  he  afterwards  pretended  that  his  mar- 
itime laws  were  respected  by  all  the  world.  He  had, 
in  consequence,  the  ridiculous  arrogance,  to  require 
all  foreign  vessels,  on  meeting  an  English  ship,  to  sa- 

(125)  If  we  attend  to  the  weakness  ot  these  vcssgIs,  we  sliall  not 
be  surprised  at  the  number.  Tlie  greater  part  of  them  were  mere- 
ly coasting  crafl,  that  is,  large  boats,  or  barks  with  three  masts. 
The  others  were  gallies,  aklnd  of  vessels  of  war  with  sailsand  oars, 
having  the  prow  armed  with  a  beak  head,  or  brass  trident  extend- 
ing almost  to  the  water  line.*  Ducange,  Voc.  Galen. 


"  See  Henry's  History  of  Great  Britain,  Book  III.  Clirsp.  1,  &  6 T. 


/ 


126  THE  MARITIME  LAW        Parti. 

Edward  I.  claims  tlie  sovereignty  of  tlie  British  sea. 

lute  the  flag,  and  ordered  his  officers  to  compel  them 
to  pay  this  homage  to  his  power,  and  to  chastise  their 
captains  in  case  of  refusal. (126) 

8.  Edward  the  first,  though  engaged  in  a  war  with 
Scotland  and  Wales,  did  not  relax  his  efforts  to  ex- 
tend his  authority  over  the  seas  surrounding  Great- 
Britain.  He  prohibited  the  Flemish  and  Dutch  from 
fishing  in  them  without  his  express  permission,  and 
published  an  ordinance,  enjoining  his  officers,  vigi- 
lantly to  maintain  the  sovereignty  possessed  by  his 
ancestors,  over  the  British  ocean.(l27) 

9.  Ledlard,  who  wrote  by  order  of  the  govern- 
ment, his  history  of  the  English  marine,  and  is  strong- 

(126)  The  words  of  this  ordinance  of  king  John  are,  "Encontre 
'•'  sur  la  mier  aucuns  nefs  ou  vaisseaux  charges  on  voiles,  qui  veuillent 
"  avaler  et  abaisser  leur  triefs  an  commandement  du  lieutenant  du 
"  roi,  ou  de  I'admiral  du  roi,  ou  de  son  lieutenant ;  mais  combattant 
"  encontre  ceulx  de  la  flotte,  que  s'lls  puent  estre  pris,  qu'ils  soient 
"  reputes  comme  enemies,  et  leurs  nefs,  vaisseaux  et  bien  pris  et 
"  forfaits,  comme  biens  desenemis,  tant  soit  que  les  maitres  etpos- 
"  sesseurs  d'iceulx  voudraient  vener  apres  et  alieguer  meme  les  nefs, 
"  vaisseaux,  et  biens,  estre  biens  d'amies  du  roi  nostre  seigneur,  et 
*'  que  la  manle  estant  en  iceulx,  soient  chasties  par  emprisonne- 
"  ment  de  leur  corps,  par  leur  rebellit6,  pour  discretion."  Stlden 
Mare  Clausiim,  lib.  2. 

(127)  The  words  of  this  ordinance  are,  "  especiellement  de  re- 
"  tenir  et  maintenir  la  souveraignete  que  nos  ancetres,  royes 
"  d'Engleterre  soloyent  avoir  en  la  dite  mier  d'Engleterre  quant 
"  a  I'amendment,  declaration,  et  interpretation  des  loix  par  eux 
"  faites  a  gouverner  toutes  maners  de  gentz  passantz  par  la  dite 
"  mier."    Sddai,  lac.  cit.j 


Chop.  L  OF  EUROPE.  127 

Reasoning  of  Lediard. — Dispute  between  Philip  and  Edward. 

ly  attached  to  the  system  of  the  maritime  sovereigntv 
of  the  English,  supports,  by  a  very  curious  train  of 
reasoning,  the  extension  of  this  empire  over  the  wa- 
ters which  wash  the  coasts  of  France.  "  During  two 
"  hundred  and  fifty  years,"  says  he,  *'  that  the  Nor- 
"  mans  were  masters  of  both  sides  of  the  channel, 
*'  no  person  had  a  right  in  any  part  of  the  British  seas; 
**  the  sovereignty  belonged  exclusively  to  them.  But 
"  in  what  quality  do  they  hold  this  right,  if  it  is  not 
"  in  that  of  kings  of  England  }  By  what  title,  if  it  is 
"  not  that  of  its  being  an  inseparable  apanage  o{  \.\\cit 
"  crovim."  Thus,because  the  French  conquered  Eng- 
land, England  became,  at  once,  mistress  of  her  own 
coasts,  and  those  of  Normandy  :  but  when  England 
lost  that  province,  when  she  renounced  it  forever, 
by  the  treaty  of  Abbeville,  confirmed  by  many  others, 
she  still  remained,  according  to  Lediard,  the  sove- 
reign of  the  sea  which  bathes  the  Norman  coast ' 
The  same  author  defies  France  to  prove  that  she  ever 
had  the  right  to  nominate  an  admiral  in  those  seas, 
in  which  the  English  assert  that  France  can  have  on- 
ly a  commodore.(l28) 


10.  Philipc-lc-Bel,  having  nominated  Regnicr 
Grimaldi,  a  Genoese,  admiral  of  the  channel,  Ed- 
ward considered  himself  insulted,  and  demanded  sat- 
isfaction, which  he  did  not  obtain.  The  English  pre- 
tend, that  the  arbiters  chosen  by  each  party  to  decide 


(128)  See  an  excellent  work,  on  this  subject,  of  M.  Viennot  dr- 
Viublanc,  entitled,  Rivalile  dc  la  Franc:  et  d" Anzktcnr . 


128  THE  MARITIME  LAW        Part  L 


Decision  of  the  arbiters  between  France  and  England. 

this  difference,  determined  in  favour  of  the  English 
monarch,  and  declared  that  his  predecessors,  had 
been  always  sovereigns  ot  the  sea,  in  which  the  kings 
of  France  had  no  right  to  have  an  admiral,  but 
merely  a  commodore.  If  this  pretended  award,  in 
favour  of  the  maritime  sovereignty  of  England,  did 
take  place,  it  ought  to  have  been  preserved  with 
as  much  care  by  the  English  as  their  Magna  Charta  \ 
yet  it  is  no  longer  to  be  found,  in  the  records  of  the 
tower  of  London,  where  Bouroughs,  Coxe,  Selden, 
and  others  pretend  to  have  seen  it.(129)*  Sir  Walter 

(129)  M.  Sainte-Croix,  in  the  work  before  cited,  asserts,  that 
M.  de  Breqtiigny,  coukl  not  discover  this  piece,  after  a  most  diligent 
and  close  search  made  by  him  in  the  tower  of  London,  by  order  of 
the  king  of  France.  Long  before  him,  the  laborious  Rymer  ap- 
pears not  to  have  been  more  fortunate,  or  has  rejected  the  paper  as 
spurious. 

'"  Selden  founds  his  assertion  on  a  record  to  be  found  in  the  tower 
of  London,  part  of  which  Coke  has  transcribed,  in  his  Institutes, 
part  4,  ch.  22.  It  is  entitled,  De  superioritate  maris  Aiiglm  etjure 
officii  admiralitatis  in  eodem.  It  seems,  that  certain  commissioners, 
or  auditors,  were  appointed  by  Edward  I.  and  Philip  le  be/,  to  de- 
cide some  maritime  disputes  which  had  arisen  between  the  two  na- 
tions, and  that  procurators  from  the  principal  maritime  states  of 
Europe  attended  before  those  commissioners;  that  is,  from  Genoa, 
Catalonia,  Spain,  Germany,  Friseland,  Denmark,  and  Nonvay,  and 
other  places.  The  libel  presented  by  these  procurators  to  tlie  com- 
missioners, is  given  by  Coke  as  extracted  from  the  record  of  their 
proceedings,  written  in  Norman  French  ;  it  recites,  "  that  where- 
as, the  kings  of  England,  by  right  of  their  said  kingdom,  have,  from 
time  out  of  mind,  been  in  peaceable  possession  of  the  sovereign 
lordship  of  the  English  seas,  and  of  the  islands  within  the  same,'' 
&:c.  &c.     It  improbable,  that  the  award  of  the  commissioners  is 


Chap.  I.  OF  EUROPE.  i2!) 

Maritime  war  between  England  and  France. 

=»  ■     ■    -  ■  -v 

R  ileigh  himself,  though  strongly  attaclied  to  the  glo- 
ry of  his  country,  acknowledges,  that  he  did  not  un- 
derstand that  the  Enj^lish  maritime  dominion  became 
absolute  before  the  reign  of  Henry  VIII.(130)  Be- 
sides, it  appears  that  this  dispute  was  not  terminated 
by  that  award,  so  much  vaunted  by  the  English  au- 
thors ;  but  that  the  two  kings,  irritated  against  each 
other,  commenced  an  open  war.  An  English  fleet 
insulted  Rochellc,  and  carried  ofFa  large  booty.  Phi- 
lip le  bd,  sent  a  considerable  naval  force  against  En- 
gland, under  the  command  of  Matthew  de  Mont- 
morency, w'ho  landed  near  Dover,  seized  upon  the 
place,  and  burnt  a  part  of  the  town.  This  enterprise 
led  to  an  accommodation  between  the  two  princes. 

11.  Mary,  queen  of  England,  having  married,  in 
1554,  Philip  II.  king  of  Spain,  imagined,  that  she 
could  gain  the  unfeeling  heart  of  her  ambitious  spouse, 
by  seconding  his  designs  against  his  adversary,  Henry 
II.  king  of  France,  who  had  just  lost  the  battle  of  St. 
Quintin.  She,  therefore,  endeavoured  to  prevent  the 
success  of  the  French  cruisers,  who  had  made  a  great 

contained  in  ihis  record,  or  at  least,  from  so  much  of  it  as  appears, 
that  it  was  in  favour  of  England.  The  record  in  Coke,  is  doubt- 
less the  one  referred  to  by  Sehlen,  and  must  have  been  seen  by 
him T. 

(130)  This  assertion  of  Sir  Walter  Raleigh  is  not  the  less  gratu- 
itous. The  English  were  often,  at  that  time,  beaten  by  the  French. 
Henry  Vlll.  m  1536,  was  obliged  to  sue  for  peace  with  Francis  I. 
It  was  granted  on  condition  of  restoring  Boulogne  to  France, 

Vol.  I.  R 


130  THE  MARITIME  LAW        Parti- 


The  English  cluim  the  channel.— Elizabeth's  answer  to  the  Spanish  envoy. 

number  of  prizes  in  the  channel.  Through  her  chan- 
cellor, she  complained  of  this  conduct.  This  minis- 
ter, in  his  note,  says,  tliat  he  is  surprised  that  the 
French  should  undertake  to  capture  foreign  vessels 
in  the  channel,  the  protection  of  which  belonged  to 
the  queen,  his  mistress.  Antoine  de  Noailles,  the 
French  ambassador,  answered,  that,  without  investi- 
gating the  rights  of  the  English,  he  might  also  com- 
plain that  they  had  so  badly  discharged  their  duty  in 
protecting  this  passage,  that  many  French  merchant- 
ships  had  been  captured  by  the  Spanish  ;  that,  after 
all,  the  sea  was  free  and  common,  and  that  power 
alone  conferred  the  sovereignty  of  it.(131) 

12.  Queen  Elizabeth,  whose  discourses  were  al- 
ways made  with  much  consideration,  replied  to  the 
envoy  of  Spain,  Don  Mendoza,  who  complained  that 
the  English  were  allowed  to  navigate  the  Indian 
ocean,  that  she  saw  not  why  the  English,  or  any 
other  nation  should  be  interdicted  the  navigation 
of  those  seas  ;  that,  in  this  respect,  she  knew  of 
no  prerogatives  possessed  by  the  Spaniards,  much 
less  that  of  prescribing  laws  to  those  who  were  not 
bound  to  obey  them  ;  that  the  use  of  the  ocean  on 
which  the  English  sailed,  was  as  common  to  them, 
and  to  all  mankind,  as  the  air,  and  that  by  their  na- 
ture, these  elements  could  not  be  subjected  to  the 
power,  or  become  the  property  of  any  person  what- 

(131)  See  Amhassade  et  nesj^otiation  de  Noailles,  to?n.  1^  p.  291. 
DepLche  d' Antoine  de  N0auks,  du  27  Aoftt,  1555. 


Chap.  I.  OF  EUROPE.  131 


Nava]  power  of  tlie  Dutcli. — King'  Jaiuos  surrenders  the  cautionary  towns. 

ever.(  1 S2)  This  principle,  no  less  founded  in  reason, 
than  permanent  and  universal,  was  soon  torgotten  by 
the  successors  of  that  illustrious  princess.  Besides, 
Elizabeth  having  laid  the  first  and  true  foundation  of 
the  maritime  empire  of  her  nation,  had  not  time  be- 
fore her  death,  to  secure  it  by  a  solid  and  advanta- 
geous treaty  of  peace.  After  her  decease,  the  sceptre 
of  the  seas  passed  to  the  hands  of  the  Dutch.  The 
possession  of  it  v^^as  afterwards  insured  to  them  by  the 
brilliant  victory  of  \^an  Tromp,  over  the  grand  fleet 
of  Spain,  to  which  Philip  II.  before  the  engagement, 
had  given  the  name  of  invincible. 

13.  In  1616,  James  I.  king  of  England,  being  in 
want  of  money,  the  Dutch  took  advantage  of  his  ne- 
cessities, and  managed  the  monarch  with  so  much 
address,  that  the  next  year  he  resolved  to  restore  to 
them,  the  towns  of  Flushing  and  Brille,  and  the  fort  of 
Ramenkens,  by  the  possession  of  which,  the  English 
had  kept  them  in  a  state  of  dependence. (133)  The 
regret  which  this  prince  felt,  after  surrendering  these 
cautionary  towns  to  the  Dutch,  not  only  irritated  him 
against  Barnevelt,  the  author  ot  the  negotiation,  but 
rendered  him  still  more  ill-disposed  towards  the  re- 
public. He  sought  occasion  to  intercept  their  her- 
ring fishery  on  the  coast  of  Scotland  ;  and  upon  the 

(132)  Camden's  Life  of  Elizabeth,  15S0. 

(133)  See  Letters  and  Negotiations  of  Dudley  Carlton,  vol 
p.  57,  &c.  Burnet's  Memoirs,  vol.  1,  p.  23,  2k 


i 


132  THE  MARITIME  LAW        Parti, 

James  captures  the  Dutch  fisliermen  :  his  reply  to  tlieir  complaints. 

reiterated  complaints  of  the  Dutch,  his  minister 
wrote  to  the  English  ambassador  at  the  Hague,  the 
1st  of  January,  1617,  to  the  following  effect: 

"  That  his  Britannic  majesty  wished  the  States 
"  General  to  be  informed,  that  the  king  of  Spain  had 
"  requested  leave  of  him  to  fish  in  the  British  seas, 
"  and  that  the  king  of  France  had  desired  that  this  li- 
"  berty  might  be  granted  to  him,  for  the  supply  of  his 
"  own  household.  His  majesty  further  declared,  that 
"  he  understood  the  laws  and  rights  of  his  kingdom, 
"  and  that  it  was  not  from  them,  nor  from  their  Gro- 
"  tius,  that  he  should  learn  the  principles  of  the  law 
"  of  nations ;  in  short,  he  threatens  them,  that  if  they 
"  do  not  acknowledge  the  legality  of  his  claims,  as 
"  all  the  other  nations  of  Christendom  have  done,  it 
"  may  happen,  that  by  their  obstinacy,  and  their 
'•'  ?nare  liberum,  they  would  soon  be  reduced  to  want 
"  ierrarriy  and  solum,  and  rempiiblicam  liberam" 
Notwithstanding  the  violence  of  this  extravagant  let- 
ter, James,  whom  Henry  IV.  called  Capitaine^sartSy 
et  clerc  auxarms^  was  satisfied  with  a  verbal  acknow- 
ledgment, and  by  his  lawyer,  Selden,  claused  an  an- 
swer, entitled  Mare  Clausiim,  to  be  given  to  the  trea- 
tise ofGrotiiis,  under  the  title  of  Mare  Liberum.  Du- 
ring the  reign  of  this  monarch,  every  controversy, 
though  commenced  with  bitterness,  and  with  much 
scholastic  disputation,  ended  in  a  peaceful  manner. 

14.  This  prince,  who  never  let  slip  an  occasion  to 
exhibit  his  claims  to  the  empire  of  the  sea,  took  ad- 


Uiap.  I.  OF  EUROPE. 


Treatment  of  Sully,  the  French  ambassador. 


vanta2:e  of  a  remarkable  circumstance  to  assert  them 
against  France.  It  was  that  of  the  embassy  of  Sullv, 
sent  by  Henry  W .  to  England,  to  felicitate  James 
on  his  accession  to  the  throne,  and  to  renew  the  an- 
cient treaties.  Cardinal  Richelieu,  who  knew  the  re- 
sources of  his  country,  and  was  desirous  of  making 
Lewis  XIII.  sensible,  how  necessary  it  was  for 
France  to  maintain  a  respectable  marine,  relates  the 
following  fact :  **  The  duke  de  Sully,  appointed  by 
*'  Henry  W .  ambassador  extraordinary  to  England, 
"  having  embarked  at  Calais  in  a  French  ship,  bear- 
*'  ing  the  French  fiag  on  her  mainmast,  was  no  soon- 
*^  er  in  the  channel,  than  meeting  the  English  vessel 
"  which  was  to  receive  him,  the  commander  order- 
'^  ed  the  French  vessel  to  lower  her  colours.  The 
"  duke,  believing  that  his  official  character  would 
*'  protect  him  from  such  an  affront,  resolutely  refused 
*'  compliance  ;  but  this  refusal  was  followed  by  three 
*'  cannon-shot,  which,  entering  the  ship,  pierced  the 
*'  heart  of  every  good  Frenchman.  Force  compellcfd 
*'  him  to  do  what  reason  forbade,  and  to  the  com- 
*'  plaints  he  made,  the  only  answer  he  could  obtain 
*'  from  the  English  captain  was,  that  as  his  dutu  obli-  / 

^^  ged  him  to  respect  the  rank  of  the  ambassador,  the      ./ 
*'  latter  was  also  bound  to  render  to  the  /lag  of  his  mas-      ^ 
**  tery  the  honours  due  to  the  soveirign  of  the  sea.''\  134) 
Henry  IV.  dissembled  his  resentment,  but  with  a 
firm  resolution  to  maintain  the  rights  ot   his  crown, 
when  time  should  have  enabled  him  to  acquire  a  suf- 


(131)  Ttstamcnt politique  du  Curd.  Richelieu,  cli.  1,  §  5. 


134  THE  MARITIME  LAW        Part  L 

Croin\sell  asserts  the  sovereignty  of  the  sea,  agahist  the  Dutch. 

ficient  maritime  force.  Unhappily,  that  great  king 
was  assassinated  at  the  very  period  when  he  had  con- 
ceived, and  was  preparing  to  execute,  the  project  of 
creating  a  national  marine. 

15. 'Cromwell,  after  seizing  on  the  throne,  from 
which  he  had  precipitated  his  sovereign,  and  brought 
him  ignominiously  to  the  scaffold,  was  not  slow  to 
resume  the  old  pretensions  of  his  country,  to  the  em- 
pire of  the  sea.  England,  says  he,  having  acquired 
this  empire,  from  all  other  nations,  by  the  point  of  the 
sword,  cannot  allow  any  flag  but  its  own,  to  appear 
on  the  ocean.  He  wrote  to  Blake,  the  commander 
of  a  squadron,  destined  against  the  Dutch,  this  very 
singular  letter  :  "  It  would  be  to  your  honour,  sir, 
"  and  that  of  the  brave  captains  under  you,  to  send 
"  all  these  frogs  [the  Dutch]  back  again  to  their 
"  marshes,  and  not  to  suffer  them  any  longer  to  dis- 
"  turb  us  with  their  croaking."(135) 

16.  The  medal,  struck  at  London,  after  the  victo- 
ry gained  over  the  Dutch,  by  the  English  fleet,  un- 
der the  command  of  the  Duke  of  York,  on  the  13th 
of  June,  166e,  sufHciently  displays  the  national  spir- 
it with  which  Cromwell  had  inspired  the  English, 
and  the  unalterable  pretensions  of  this  ambitious  and 
proud  nation.  On  the  medal  is  represented  the  Ge- 
nius of  Great-Britain,  with  this  legend:  Quatuor  ma- 
ria  vindico.  Charles  II.  in  his  manifesto  against  Hol- 
land, published  in  1672,  says,  "  that  it  was  an  un- 

*  Ragueuet's  Life  of  Cromwell. 


Chap.L  OF  EUROPE.  135 

Charles  II.  and  William  III.  assert  tlie  claim  to  the  sovereignty  of  the  sea. 

"  heard  of  violence  for  them  to  pretend  to  dispute 
"  the  empire  of  the  sea  with  the  English,  or  to  re- 
**  fuse  the  honours  due  to  their  flag."  He  added, 
"  that  this  empire  was  one  of  the  first  prerogatives 
*'  of  his  predecessors,  and  the  last  which  his  king- 
"  dom  would  relinquish."*  He  was  represented  on 
a  medal,  seated  in  a  triumphal  car,  drawn  by  four 
sea-horses,  with  this  motto,  Et  pontus  scrviet. 

17.  William,  prince  of  Orange,  the  usurper  of  the 
English  throne,  on  declaring  war  against  France, 
the  27th  May,  1689,  published  a  manifesto  so  inso- 
lent and  abusive  as  to  shock  even  the  powers  most 
jealous  of  the  grandeur  and  prosperity  of  Louis  XIV. 
His  claim  to  the  empire  of  the  sea  was  supported  by 
the  most  odious  reproaches  and  outrageous  insults. 
He  gave  to  Louis  no  other  title  than  king  of  the 

*  B)nkershoek;  observes,  that  by  the  saliilation  of  the  British 
flag,  nothing  more  was  intended,  than  the  acknowledgment  of  that 
precedence  due,  by  the  etiquette  of  nations,  from  repubhcs  to 
crowned  heads,  and  their  representatives  :  and  he  cites,  by  way  of 
example,  the  treaties  of  peace  between  England  and  the  States 
General,  made  in  \6b\,  1662,  1667,  and  167 4-,  in  which  (he  latter 
stipulate  to  pay  the  honours  of  the  flag  to  the  ships  of  the  former  in 
the  northern  sea.<;,  and  as  far  as  Cape  Finisierre.  Quin  si  nee  essent, 
ita  nilulominufi  mnribus  gentium  obtimnt,  ut  respuhliece  regnis  assur- 

gant,  et  quiinvicem  representant,  eodem  jure,  utaniur Anghruvi 

majestate  terra  marique  conntcr  obsertamus,  sect  7iegamus  ex  eo,  quod 
mari  obscriaremus,  adiei-sus  ?ios  rede  illius  imperium  jactare,  et  zri 
generaliter  de  doininio  Britannici  recte  sibi  blandiri,  et  praterea  ma- 
gis  ncgamus,  quod  tertio  quoqiie  vtrbo  inculcrit  Seldeiius,  imperium  iv- 
aulx  coinilari  pcrpeluo  comitatuni  J'uisse  imperiiim  ynaris.  Bvnk.  d: 
dominio  tnaris,  cap.  5,  adfinem T. 


156  THE  MARITIME  LAW        Part  I. 


English  maniresto. — Battle  of  La  Hogve. 


French,  called  him  the  general  enemy  of  the  Christian 
world,  and  in  assigning  the  concluding  motive  to  war, 
he  did  not  hesitate  to  make  use  of  the  following  terms : 
"  That  the  rights  of  the  flag  which  belonged  to  tbiC 
"  crown  of  England,  had  been  disputed  by  his 
"  [Louis  XIV.]  order,  a  measure  tending  to  the  vio- 
"  lation  of  our  sovereignty  of  the  sea,  which  has  been, 
"  at  all  times,  maintained  by  our  predecessors,  and 
"  which  we  are  resolved  to  support,  for  the  honour 
"  of  our  crown  and  of  the  English  nation."  William 
showed  himself  inflexible  in  the  arrogant  claims  he 
had  determined  to  maintain.  On  account  of  a  vic- 
tory gained  by  the  combined  fleets  of  England  and 
Holland,  consisting  of  eighty-nine  sail  of  the  line, 
and  twenty-three  frigates,  under  the  command  of 
Lord  Russel,  oflf  La  Hogue,  the  19th  May,  1692, 
over  the  French  fleet  of  44  ships,{l35)  commanded 

(136)  In  this  famous  battle,  the  courage  of  the  French  was  the 
admiration  of  their  enemies.  Not  one  of  their  vessels  struck  its 
flag.  Twelve  ships,  obhged  to  retire  into  La  Hogue,  a  port  with- 
out any  means  of  defence,  were  burnt.  Russel  had  the  greatness  of 
mind  to  write  to  Tourville  in  these  words:  "  I  congratulate  )ou, 
"  sir,  on  the  extraordinary  valour  which  you  have  disphi^ed  in  at- 
"  tacking  me  with  so  much  intrepidity,  and  in  fighting  with  such 
"  inequality  of  forces."  Shovel  anci  Delaval,  English  admirals,  and 
Allemonde  and  Callemberg,  the  Dutch  commanders,  merit  applause 
ibr  the  praises  bestowed  on  their  adversaries;  ajustice  which  en- 
lightened self  love  easily  confers,  but  which  a  mean  and  jealous  po- 
licy often  withholds.  The  English  ministry,  in  publishmg  the  ac- 
counts given  by  their  admirals,  suppressed  every  thing  which  was 
honourable  to  the  French  admiral,  who  was  destined  to  appear 
again  on  the  scene,  and  whose  reputation  they  feared.  Ilistoire  de 
la  puissance  naxale  d'Angleterre,  torn,  2. 


Chap.  I.  OF  EUROPE.  137 


Seamen  are  naturally  imperious. — Naval  victory  of  the  French. 


by  the  famous  Tourville,  he  caused  a  medal  to  be 
struck,  representing  himself  under  the  figure  of  Nep- 
tune, with  the  following  verses,  which  Virgil  puts  in 
the  mouth  of  this  God,  when  addressing  the  winds : 

Maturatefttgam,  regique  diciie  vestro, 
A'ort  illi  imperium  Pelagi* 

"  The  natural  tone,"  says  Dalrymple,  an  English  his- 
torian, "  of  all  maritime  powers,  because  they  can 
"  insult  every  where  with  impunity. "(137)  Men  who 
habitually  follow  the  sea,  are  naturally  haughty  and 
imperious ;  ambition  converts  this  haughtiness  into 
despotism  ;  and  the  natural  effect  of  an  insular  posi- 
tion, is  to  lead  to  tyranny  on  the  ocean. (138) 

18.  The  briUiant  victory  gained  by  the  French 
fleet,  under  the  command  of  Marshal  Tourville,  off 
Beachy  Head,  the  10th  July,  1690,  over  the  combin- 
ed English  and  Dutch  fleet,  commanded  by  Herbert, 
(Lord  Torrington)  and  superior  in  the  number  of 
ships  and  weight  of  metal,  gave  to  France  the  mari- 
time ascendancy. (139)  Louis  XIV.  commemorated 
this  victory  with  great  moderation,  by  a  medal  struck 
at  Paris,  with  this  legend :  Imperium  maris  assertum. 

*  Virgil's  ALncid,  lib.  I,  1.  136. 

(137)  Dalrymplc's  Memoirs  of  Great  Britain,  vol.  I,  p.  41. 

(138)  Barrere,  de  la  Liberie  des  Mers,  torn.  I,  p.  3. 

(1 39)  Herbert  was  so  roughly  handled  in  this  action,  (hat  he  was 
obliged  to  put  out  his  boats,  and  tow  off  his  ships  during  the  night. 
Had  it  not  been  for  this  circumstance,  Tourville  would  have  en- 

VoL.  r.  s 


138  THE  MARITIME  LAW        Part  L 

French  victorious  over  the  combined  fleet  under  Admiral  Rook. 

He  caused  another  medal  to  be  struck,  on  which 
were  seen  broken  ships,  masts,  and  flags  heaped 
among  the  arms  of  England  and  Holland ;  upon  the 
summit  of  this  naval  trophy,  victory  holds  in  one 
hand  a  crov^  n  of  laurel,  and  in  the  other  a  palm. 
The  words  of  the  legend  are,  mersa,  et  fugata  An- 
glorum  et  Batavoimm  classe ;  and  those  of  the  ex^ 
ergue,  ad  or  as  Anglic,  x.  Julii,  MDCXC.  The  count 
of  Thoulouse,  commander  of  the  combined  fleet  of 
France  and  Spain,  directed  by  M.  d'Estrees,  chased 
from  their  coasts  on  the  Mediterranean,  the  English 
and  Dutch  fleets,  under  the  command  of  Admiral 
Rook.(140)  The  memory  of  this  event  was  preserv- 
ed by  a  medal,  which  represents  Spain  sitting  on  a 

tirely  destroyed  the  English  fleet.  As  the  Dutch  were  most  expo- 
sed to  the  French  fire,  there  wasnot  one  of  their  ships  but  what  was 
crippled  or  dismasted.  The  enemy  lost  fifteen  large  ships,  and  five 
fire-ships.  Two-thirds  of  their  crews  were  killed,  wounded,  or 
made  prisoners.  The  French  fleet  did  not  lose  a  boat.  It  had  400 
killed  and  500  wounded.* 

(140)  The  English,  though  superior  in  force  by  six  sail  of  the  line, 
quitted  the  field  of  battle.  The  French  lost  but  one  ship,  and.  the 
Dutch  vice  admiral's  was  blown  up.f 


*  The  French  fleet  consisted  of  seventy -eight  large  ships,  besides  fire- 
ships  and  frigates.  The  combined  fleet  consisted  of  twenty -two  Dutch  and 
thirty -foui"  English  ships.  Balryvxple's  Memoirs,  vol.  3,  p.  18.  Smoilet's 
Continuation  of  Hume,  vol.  1,  p.  96.  The  English  historian  states  the  loss  of 
the  English  to  be  only  two  ships,  and  400  men T. 

t  The  English  and  Dutch  fleet  consisted  of  23  sail.  A  large  French  fleet 
of  eighty  sail,  was  lying  in  Logos  Bay,  though  only  eighteen  ships  vv  ere 
dispatched  to  attack  the  En,c:lish.  Three  Dutch  ships  sustained  tlic 
whole  fight  of  eighteai  French,  ar.d  gave  the  Er.glish  an  opportunity  to  es- 
cape. ScsJDalrjin^tk's  Memoirs,  part  3,  p.  47".  Sinollet,  vol.  1,  p.  205 T. 


I 


Chap.  I.  OF  EUROPE.  139 

A  rrog'ance  of  the  English  :  Means  by  which  they  acquire  their  superiority. 

half  column  ;  victory  appears  above  in  the  air,  hold- 
ing a  palm  in  her  hand.  The  legend  is,  One  His- 
panm  securifas  ;  the  exergue,  Anglorinn  Batavorum 
classe  fiigafa  ad  Afalacam,  24  Aug.  1704. 

19.  It  is  not  by  medals  only,  that  the  English  gov- 
ernment has  shewn  its  insulting  arrogance.  The  ex- 
ample of  moderation  in  France  has  never  been  able  to 
raise  a  blush  in  England  at  the  maxims  she  has  adopt- 
ed. She  has  boldly  proclaimed  her  pretended  maritime 
empire  in  the  faceof  the  world.(141)  England  has  al- 
ways felicitated  herself  on  her  superiority  at  sea  j  but 
how  shamefully  has  this  superiority  been  acquired  ;  by 
the  violation  of  the  sacred  principles  of  the  law  of  na- 
tions, by  which  alone  she  has  attained  that  ascendan- 
cy ;  by  ruining  the  commerce  of  every  nation,  and  by 
keeping  so  many  French  seamen  to  perish  in  her  pri- 
sons.(142)    If  the  British  government  wishes  to  dis- 

(14-1)  In  an  order,  relative  (o  (he  English  marine,  of  the  1st  of 
Januar)-,  1734,  we  find  the  following  article :  "  Foreign  vessels, 
"  meeting  any  ship  of  his  majesty,  in  the  British  seas,  as  far  as 
"  Cape  Finistcrre,  and  refusing  to  lower  their  flag,  ought  to  be 
"  compelled  to  do  so,  and  those  who  shall  neglect  to  compel  them, 
"  will  be  informed  against.  Ships  of  his  Britannic  majesty  are  not 
"  to  lower  the  flag  in  the  British  seas,  nor  in  foreign  seas." 

(14'2)  In  the  lOih  article  of  the  answer  to  the  ultimatum  of 
France,  who,  in  the  negociation  at  Augsburg,  in  1763,  insisted,  at 
first,  on  the  restitutionof  the  vessels  taken  before  the  declaration  of 
war,  the  British  minister  had  the  assurance  to  advance,  that  "this 
"  demand  was  neither  just,  nor  to  be  supported  according  to  the 
"  Incontestible  principles  of  the  laws  of  war  and  of  nations."  What 
an  answer  !  Such  impudence  will  alwavs  impose  silence  on  probi- 
ty and  moderation. 


no  THE  MARITIME  L AAV        Part  L 

Unjust  conduct  of  England  in  making  captures  before  it  declares  war. 

turb  the  peace  of  the  world,  if  it  desires  to  attack 
France,  it  calculates  chances,  it  watches  the  moment 
when  perfect  security  induces  the  citizens  of  other 
countries  to  engage  in  commercial  speculations,  and 
to  exert  their  maritime  industry,  it  then  commences 
war;  hostilities  precede  any  declaration,  the  seamen, 
the  wealth  of  the  nations  it  summons  to  the  combat, 
become  its  prey,  and  are  declared  its  property, (1 43) 
Surely,  the  usage  among  other  nations  was  sufficient- 
ly established,  to  prevent  acts  so  contrary  to  the  com- 
mon rules  of  equity  ;  but,  unfortunately  for  British 
honour,  it  must  be  remarked,  that  provision  had  been 


(143)  History  affords  many  examples  of  this  conduct.  It  will  be 
sufficient  to  cite  a  few,  the  most  known.  The  attack  of  the  Dutch 
Smyrna  fleet,  in  1672,  and  of  the  Spanish  fleet,  on  the  coast  of  Sici- 
ly in  17  18.  These  two  acts  of  hostility  were  not  preceded  by  any 
declaration  of  war  ;  nor  was  the  capture  of  the  two  French  frigates, 
Le  Lt/s  and  L'Alcide,  or  that  of  two  hundred  French  merchantmen  at 
the  beginning  of  the  war  before  last.  In  1755,  without  any  pre- 
vious declaration  of  war,  the  English  attacked  and  took,  off  Cape 
Race,  in  the  island  of  Newfoundland,  ten  Frerxh  ships;  their 
cruisers,  afterwards,  fell  upon  the  merchant-ships,  captured  three 
hundred  of  them,  and  made  eight  thousand  seamen  prisoners.*  la 
the  present  war,  before  the  return  of  Lord  Whitworth  to  London, 
many  French  ships  were  taken  and  carried  into  the  British  ports  : 
Vessels  of  war  were,  in  like  manner,  attacked  on  the  coasts  ci  Eu- 
rope, and  in  the  latitudes  of  America  and  Asia. 


*  See  SvioUct's  continuation  of  Hume's  History  of  England,  vol.  3,  p. 
437,  440,  442.  "  The  British  ministry,  in  their  conferences  with  count  Mi- 
"  repoix,  made  no  secret  that  their  admirals,  paiticularly  Boscawen,  had 
"  orders  to  attack  the  French  ships  wherever  they  should  meet  them." T. 


Chap.  I.  OF  EUROPE.  ui 


Conduct  of  France  ;  its  naval  superiority  in  the  reign  of  Louis  XIV. 

made  by  treaty,  for  this  very  case.  By  the  treaties  of 
Utreclu  and  Aix  la  Chapelle,  it  was  agreed  that  the 
two  iiations,  in  case  of  war,  should  mutually  grant 
safe-conduct  to  such  of  their  subjects  respectively,  as 
had  vessels  in  the  ports  of  the  other,  because,  says 
the  2')th  article,  not  having  any  knowledge  of  the  rup- 
ture that  takes  place,  they  navigate  in  the  confidence  of 
peace,  and  on  the  faith  of  treaties.  From  a  single 
trait,  we  may  discern  the  difference  between  the  con- 
duct of  the  two  nations.  At  the  very  time  that  Eng- 
land every  where  captured  the  French  vessels,  France 
restored,  with  religious  faith,  all  the  English  vessels 
found  in  her  ports,  at  the  time  of  the  rupture,  or 
which  had  been  taken  at  sea,  before  a  knowledge  of 
the  declaration  of  war.  The  cabinet  of  St.  James 
accepted  the  restitution  ;  but  made  none  on  its  part, 
satisfied  with  admiring  the  good  faith  of  France. 

20.  The  long  and  brilliant  reign  of  Louis  XIV. 
afforded  the  French  marine  every  occasion  that  could 
be  wished,  to  distinguish  itself,  and  to  obtain  a  de- 
cided preponderance  at  sea.  It  is  well  known  what 
part  this  marine  had,  and  which  it  must  have  natu- 
rally had,  in  the  series  of  important  and  glorious 
successes  that  attended  this  great  king.  Notwith- 
standing his  maritime  superiority,  it  does  not  appear 
that  this  prince  ever  arrogated  to  himself  the  empire 
of  the  sea.  If  any  thing  could  be  suffered  to  destroy 
the  principle  of  natural  independence,  and  general 
liberty  on  the  sea,  a  principle,  the  violation  of  which 
ought  to  rouse  every  man  of  feeling,  in  the  cause  of 


142  THE  MARITBfE  LAAV        Parti. 

France  has  tlie  best  claim  to  the  empire  of  the  sea. 

humanity,  and  the  interests  of  his  country ;  if  any  na- 
tion might  be  allowed  to  assume  this  distinguished 
rank,  and  to  rule  over  the  waves,  what  power  has  so 
fair  a  claim  to  be  called  to  this  high  destiny,  as 
France  ?*  France,  situated  on  two  seas,  is,  by  its 
singular  position,  essentially,  a  maritime,  coramer- 

*  When  we  consider  the  great  and  decided  superiority  of  France 
on  the  continent,  her  fortunate  position,  and  internal  resources,  we 
.  cannot  believe  that  the  other  continental  powers  would  willingly 
see  her  in  possession  of  an  equal  preponderancy  on  the  ocean.    If 
France  should  obtain  a  maritime  ascendancy,  what  security  would 
the  nations  of  Europe  have  against  the  abuse  of  such  exorbitant 
power,  or  that  its  government  would  not,  like  that  of  Rome,  after 
the  destruction  of  Carthage,  attempt  the  subjugation  of  the  rest  of 
the  world  ?  The  same  danger  is  not  to  be  apprehended  from  Great 
Britain.  Her  power  at  sea  is  great;  on  the  land  it  is  nothing.  Her 
insular  situation,  and  the  habits  of  the  people,  render  it  impossible 
for  her  to  succeed  in  any  plan  of  aggrandisement  on  the  continent 
opposed  as  she  always  must  be,  by  superior  military  force.    What 
has  France,  Germany,  Austria,  Spain,  Prussia,  or  what  have  the 
powers  of  the  North  to  dread  from  the  armies  of  Great  Britain  ? 
On  the  other  hand,  what  would  not  Great  Britain  have  to  fear,  if 
her  naval  power  should  be  annihilated,  or  transferred  to  France  ? 
She  wisely  and  justly  considers  that  her  prosperity,  and  even  her 
existence  as  a  nation,  depends  on  the  superiority  of  her  military  ma- 
rine.    Her  determination,  therefore,  to  maintain  this  bulwark  of 
her  safety,  appears,  to  an  impartial  observer,  more  praiseworthy 
than  blameable.    She  has,  however,  to  guard  against  the  abuse  of 
her  maritime  power ;  lest,  blinded  by  self-interest,  she  adopt  meas- 
ures which  may  provoke  a  combination  that  will  endanger  the  ex- 
istence of  what  she  is  so  anxious  to  preserve.    It  is  the  wise  policy 
of  the  United  States,  to  maintain  a  neutrality  in  the  wars  of  Europe ; 
MvA  it  is  their  interest  that  an  equilibrium  should  be  preserved  be- 
tween England  and  France T, 


Chai).  I.  OF  EUROPE.  u: 


The  courage,  iictivity,  S;c.  of  France,  entitle  it  to  a  sviperioritj'  at  sea. 

cial,  and  military  power.  She  seems  thus  placed  by 
nature,  that  she  may  give  her  hand  to  all  the  com- 
mercial nations  of  the  world.  Frenchmen,  in  spite 
of  a  superiority  in  the  number  of  their  enemies,  have 
never  refused  to  fight ;  nor  has  England  ever  triumph- 
ed over  them,  when  the  forces  of  the  two  nations 
were  equal.  The  French  marine  has  uniformly  com- 
bated, without  calculating  any  other  chances,  but 
those  of  courage  :  France  has  constantly  taken  up  the 
glove  when  thrown  by  the  English. (144)  Might  it 
not  then  have  assumed  that  rank  upon  the  ocean,  to 
which  by  its  activity,  its  industry,  and  its  courage, 
it  has  long  since  been  entitled  ?  This  has  not  been 
done. (145) 


[\'V\)  Before  the  two  last  reigns,  the  ridiculous  preservation  of 
the  title  of  king  of  France,  afforded  the  king  of  England,  every  year, 
an  opportunity  of  displaying  his  folly.  On  the  first  day  of  the  year, 
a  herald  at  arms,  in  the  churcii  of  St.  Paul,  in  presence  of  the  court 
and  of  the  foreign  ministers,  proclaimed  all  the  titles  of  the  king  ; 
and  when  he  came  to  that  of  kin";  of  France,  he  threw  down  a 
glove,  which  the  French  ambassador  never  failed  to  take  up. 

(143)  All  thecabinetsof  Europe,  since  the  peace  of  Utrecht,  have 
erred  in  not  perceiving  thcchanges  which  were  made  in  the  relative 
interests  of  the  principal  European  powers.  Mably,  in  his  Droit  Fub- 
liquc  de  V Europe,  has  seen  this  truth,  and  has  expressed  it  in  the  fol- 
lowing terms :  "  The  court  of  France,  sceinj;,  at  the  treaty  of  Utrecht, 
"  that  England  assumed  that  rank  among  the  powers  of  Europe  which 
"  Austria  had  held,  ought  immediately  to  have  taken  measures  for 
"  there-establishmentof  her  marine,  and  to  have  gradually  directed 
"  her  principalforces  to  the  sea  coast.  Whenever  a  maritime  pow- 
"  cr,  engaged  in  commerce,  and  wishing  to  aggrandize  itself  in 
"  America,  is  placed  at  the  head  of  aHairs,  seamen  and  ships  be- 


y 


144  THE  MARITIME  LAW        Parti, 

Conduct  of  tlie  English  in  their  sea-fights  witli  the  Fi-ench. 

21.  The  English  marine  has  not  been  conducted 
on  similar  principles.  Its  practice  in  time  of  war,  is 
governed  by  two  fundamental  maxims  ;  never  to  at- 
tack, unless  stronger  than  the  enemy,  both  in  the 
number  and  size  of  its  ships  ;  to  abandon  the  field  of 
battle  when  it  is  not  certain  of  success.  If,  at  the  ap- 
proach of  night,  the  fortune  of  war  is  not  on  the  side 
of  the  English,  they  are  sure  not  to  be  found  the 
next  day.  This  circumspection  was  exhibited  even 
by  the  daring  Rodney,  who  fled  three  times  before 
the  skilful  de  Guichen  ;  by  admiral  Keppel,  who 
precipatately  retired  into  port,  as  soon  as  he  perceiv- 
ed the  French  squadron,  in  the  road  of  Brest,  to  be 
stronger  than  his  own.  The  same  admiral  follow- 
ed this  maxim,  in  the  night  following  the  action,  off 
Ushant,  and  retired,  while  d'Orvilliers  remained  on 
the  field  of  battle,  and  reserved  his  fire  during  the 
night.*  The  same  conduct  was  observed  by  Byron 
towards  de  Estaing,  and  by  admiral  Hood.  In  the 
great  naval  actions,  in  the  East-Indies,  Hughes,  not- 
withstanding his  valour,  did  not  persist  in  disputing 

"  come  more  necessary  than  land  forces.  By  this  conduct,  France 
"  would  have  been  better  prepared,  and  would  have  rendered  ne- 
"  gotiations  more  easy  and  successful.  By  restraining  the  mari- 
••'  time  power  of  the  English,  she  would  have  diminished  the  influ- 
*•'  ence  which  they  have  acquired  in  the  affairs  of  the  continent. 
•'  The  court  of  London,  less  confident  and  daring,  would  have  con- 
*'  ducted  with  less  haughtiness,  and  more  good  faith." 

*  A  very  different,  and  almost  opposite,  account  of  this  action  is 
given  by  the  English  historians.  SeeBeatson's  Naval  and  Miliiaiy 
Memoirs,  vol.  4.  Annual  Register  for  1779 T. 


Chop.  I.  OF  EUROPE.  145 


Fight  between  Hiiglics  and  Suffrein. — Lord  Chatham's  speech. 


the  victory  with  M.  Suffrein,  but  retired  four  times, 
because  he  saw  success  as  often,  ready  to  crown  the 
efforts  of  his  rival.*  An  English  frigate  has  never 
singly  attacked  a  ship  of  the  line.  The  English  are 
never  seen,  but  the  French  too  often,  perhaps,  fight- 
ing, at  the  same  time,  against  numbers,  fortune  and 
force.  The  time  is  not  far  distant,  when  French  sea- 
men (who  never  animate  themselves  with  strong  li- 
quors) will  join  skill  to  valour  ;  when  the  marine  of 
France,  reviving  under  the  influence  of  the  hero  who 
now  governs  the  state,  will  rival,  by  its  exploits  and 
successes,  the  army  of  the  line. (146) 

22.  During  the  war  of  1757,  the  French  demand- 
ed peace.  Lord  Chatham,  blindf  as  he  was,  had  him- 
self carried  to  the  House  of  Lords  ;  (he  was  the  Ti- 
resias  of  the  government)  "  No  peace,"  said  he, 
*'  unless  France  signs  the  destruction  of  her  marine  ^ 
"  it  is  enough,  if  she  is  allowed  the  coasting  trade; 
"  England  should  reserve  to  itself  the  exclusive 
"  sovereignty  of  the  ocean."  The  same  spirit  di- 
rected the  hand  of  that  minister,  when,  on  the  18th 
of  September,  in  the  same  year,  he  wrote  the  follow- 


"  In  Beatson's  Naval  andMiUtary  Memoirs,  vol.  4,  p.  430,  vol  5,  p.  58 — 
64,  p.  569 — 614,  tlicre  is  a  particular  account  of"  tliese actions,  and,  as  might 
he  expected,  materially  different  fiom  tliat  of  the  French  historians T. 

(146)  See  an  interesting  work  by  M.  Viennot  Vaiiblanc,  entitled 
lliTaliie  de  la  Fiance  ct  del'Angldene,  from  whicli  I  have  taken  the 
above  facts. 

f  Our  author  has  mistaken  the  infirmity  of  Lord  Chatham:   he 

nas  often  lame  with  the  gout,  but  never  blind T. 

Vol.  I.  T 


146  THE  MARITIME  LAW        Part  I, 

Lord  Chatham's  orders  to  Hawke. — Lord  Grenvllk's  letter. 

ing  dispatch  to  Admiral  Hawke  :  "  I  am  now  to  sig- 
"  nify  to  you  the  king's  pleasure,  that  you  do  not 
"  consider  the  above  mentioned  time  limited  for 
"  your  return,  as  intended  in  any  manner,  to  affect 
"  or  interfere  with  the  full  execution  of  the  first  and 
"  principal  object  of  the  expedition;  namely,  at- 
"  tempting,  as  far  as  shall  be  found  practicable,  a 
"  descent  on  the  French  coast,  at  or  near  Rochfort, 
"  in  order  to  attack,  if  practicable,  and  by  a  vigo- 
"  rous  impression,  force  that  place,  and  to  burn  and 
"  destroy,  to  the  utmost  of  your  power,  all  shipping, 
"  docks,  magazines,  and  arsenals,  that  shall  be 
*'  found  there,  and  exert  such  further  efforts  as  shall 
"  be  judged  most  proper  for  annoying  the  enemy."* 

23.  At  the  close  of  the  18th  century,  the  British 
cabinet  published  in  the  face  of  Europe,  and  the 
French  republic,  a  letter  from  Lord  Grenville  to 
Lord  Malmsbury,  which  contains  the  following  char- 
acteristic expressions  :  "  It  is  his  majesty's  decided 
*'  and  unalterable  resolution  on  this  point,  not  to  ad- 
"  mit  of  any  proposal  for  treating  with  his  enemies, 
"  on  the  subject  of  the  rights  or  claims  of  neutral 
"  powers."(147)  Not  long  after,  a  member  of  the 
English  parliament,  at  the  beginningofaspeech, deliv- 
ered in  an  assembly  which  represents  the  body  of  the 
nation,  made  use  of  these  words,  the  dictates  ofphren- 
sy  or  insanity  :  "  They  (the  French)  ought  not  to  fire  a 

*  See  the  original  letter  in  the  3d  volume^  page  1 3,  of  a  worken- 
titled,  "  Anecdotes  of  the  Life  of  the  Earl  of  Chatham" T. 

(147)  See  Negotiations  at  Lisle,  1797;  Lettersof  Lord  Grenville. 


Chap.  I.  OF  EUROPE.  147 

Spcccli  of  the  Duke  of  Clarence. 

"  single   cannon  on  the   sea,   in  any  part  of  the 
"  world,  vvitliout  the  permission  of  Great  Britain  j" 
an  expression  similar  to  that  uttered  by  Lord  Chat- 
ham, at  a  moment  when  he  was  attacked  by  the 
same   malady.     It  is  not  a  year  since,  that  in  the 
House  of  Lords,  the  23d  of  May,    1803,    one  of 
the  sons  of  the  king  of  England,  the  Duke  of  Cla- 
rence, did  not  scruple  expressly  to  declare,  that  the 
destruction  of  St.  Domingo  was  the  work  of  England; 
and  he  proudly  claimed  the  glory  of  it,  for  his  coun- 
try.   So  much  did  he  disregard  that  public  decency, 
observed  by  men  entrusted  with  the  government  of 
nations,  that  he  seemed  to  fear,   lest  it  should  be 
doubted  for  a  moment,  that  the  insurrection  of  the 
blacks  was  owing  to  the  magnanimous  efforts  of  the 
British  cabinet.    Proud,  without  doubt,  and  self-sa- 
tisfied with  this  exordium,  he  proceeded  to  observe, 
with  the  dignity  suited  to  a  prince  of  the  blood  ;  "  I 
"  maintain  that  England  has  not  broken  the  treaty  of 
"  Amiens,  since  the  face  of  things  has  changed,  and 
"  the  independence  of  Malta  is  more  than  ever  ne- 
''  cessary.    It  will  be,  in  our  hands,  the  pledge  of 
"  the  security  and  liberty  oi  Europe.    The  loss  ofSt. 
"  Domingo  has  been  attributed  to  the  first  consul ; 
"  I  think  difix?rently,  and  that  it  is  due  to  the  efforts 
"  of  Great  Britain.    In  consequence  of  his  majesty's 
"  message  of  the  9th  of  March,  it  may  be  said  to  the 
"  French  government,  you  shall  not  have  St.  Do- 
"  mingo,  you  shall  not  have  Louisiana  ;  to  the  Span- 
"  iards,  you  shall  not  have  the  Floridas ;  and  to  Ba- 
^'  tavia,  the  ally  of  the  first  consul,  you  shall  not  have 


148  THE  MARITIME  LAW        t^art  I. 

Haughty  and  imperious  conduct  of  Great  Britain  towards  other  nations. 

t  ' 

"  the  Cape  of  Good  Hope  ;  you  shall  have  nothing 
"  but  wiiat  Great  Britain  pleases  to  give  you."*  The 
Romans,  in  the  full  possession  of  the  empire  of  the 
world,  would  not,  in  their  senate,  have  hazarded 
language  so  audacious. 

24.  The  maritime  despotism  of  England,  during 
the  French  revolution,  has  been,  by  turns,  haughty 
and  insuflferable.  It  devised  the  plan  of  starving 
France,  in  order  to  frighten  Dtnuiark  and  Sweden 
from  an  armed  neutrality  ;  it  has  induced  Russia  to 
murmur  against  those  principles  of  the  freedom  of 
the  seas,  which  she  solemnly  recognised  in  the  Ame- 
rican war  of  independence.  Great  Britain  supposed, 
that  by  these  means,  she  could  overturn  the  system 
of  free  commerce  in  favour  of  neutrals  j  but  her  me- 
naces have  been  despised  and  disregarded  by  nations, 
jealous  of  their  rights.  England,  enraged,  carried  fire 
and  sword  before  Copenhagen.  This  odious  attack 
has  left  a  deep  impression  on  the  minds  of  maritime 
powers,  while  her  conduct,  during  the  coalition 
against  France,  has  discredited  British  influence  on 
the  continent.  If  bounds  are  not  set  to  the  ex- 
travagant pretensions  of  the  cabinet  of  St.  James  ^ 
if  Europe  sleeps  and  does  not  dream  of  repressing 

*  His  Highness  added,  '"But,  my  Lords,  I  will  declare  to 
"  yon,  notwithstanding  my  wish  to  see  my  country  ascend  in 
*'  the  scale  of  Europe,  I  would  not  wish  to  see  France  put  down, 
"  I  '!o  think,  for  the  sake  of  preserving  a  balcince,  and  securing  'J)is 
*'  liberty,  there  should  be  a  species  of  rivalry." T. 


Chap.  I.  OF  EUROPE.  149 


Contrast  between  En  jland  and  France  in  relation  to  tlie  seizure  of  seamen. 


her  pride,  wc  shall,  soon,  see  her,  like  the  Carthagi- 
nians, declaring  to  all  other  nations,  that  she  will  not 
suffer  any  of  them  to  wash  their  hands  in  the  waters  of 
the  ocean. 

25.  While  England,  tenacious  of  a  policy,  as  dan- 
gerous as  it  is  alarming,  to  all  maritime  powers,  exe- 
cuted, with  more  rigour  than  ever,  during  the  Ame- 
rican war,  the  plan  ot  seizing  the  French  seamen  ; 
the  government  of  France  had  ordered  the  fishing 
boats  of  its  enemies  to  be  spared,  and  for  a  long- 
time, endeavoured  to  obtain  the  same  humanity  from 
the  English.  These  eflbrts  were  ineffectual ;  they 
persisted  in  the  practice  of  taking  fishermen  for  the 
purpose  of  compelling  the  seamen  to  serve  on  board 
of  their  own  ships. (148)  During  the  same  war,  a 
French  cruiser  landed  on  the  isle  of  Sark,  in  the 
channel,  and  carried  off  six  of  the  inhabitants,  who 
were  labourers,  and  brought  them  to  Cherbourg. 
This  conduct  was  censured,  and  the  six  men  were 
sent  back  to  their  own  country,  by  a  flag  of  truce. 

(14-8)  In  1778,  the  Thomas  KmtUkan,  a  French  vessel  bound  for 
St.  Domingo,  was  taken  in  the  bay  oF  Gascoigne,  by  the  Hector. 
Forty  of  the  captive  seamen,  were  compelled  to  serve  on  board  ot 
the  English  vessel.  The  Thomas  was  carried  into  Portsmoiitii, 
where  her  captain  and  crew  were  thrown  into  prison,  the  sea- 
men induced  by  threats  and  promises,  to  make  false  declarations, 
and  the  vessd  cut  up,  in  hopes  of  finding  some  written  proofs  of 
her  supposed  destination.  On  complaint  being  made  by  the  French 
ambassador,  the  answer  of  the  court  of  London,  truly  remarkable, 
declared  the  right  which  it  claimed,  of  restraining,  at  its  pleasure, 
the  liberty  of  the  sea. 


150  THE  MARITLME  LAW        Part  L 

Conduct  of  France  towards  tlie  fisheries  of  its  enemies. 

Witli  such  dignity  does  France  reply  to  those  continu- 
al violations  of  the  most  sacred  rights,  the  number  of 
which,  to  the  disgrace  of  their  nation,  the  English 
are  every  day  increasing. 

26.  France  has  invariably  recognised  the  perfect 
neutrality  of  fisheries ;  she  has  constantly  adhered 
to  this  principle  from  the  reign  of  Louis  XIV.  to  the 
present  time.  It  is  true,  that,  by  the  ordinance  of  the 
1st  October,  1692,  the  Enghsh  fishermen  were  driv- 
en from  the  coasts  of  France  j  but  it  granted  to  those 
who  might  then  be  there,  a  safe-conduct  during  eight 
days,  for  their  return  home.  This  measure,  which 
circumstances  justified,  was  intended  merely  to  guard 
against  spies,  who,  under  pretence  of  fishing,  were 
employed  by  an  enemy,  that  was  preparing  for  the 
bombardment  of  the  maritime  places,  which  was,  af- 
terwards, executed,  in  1694. 

27.  The  American  war,  as  has  been  before  observ- 
ed, furnished  an  occasion  to  France  to  manifest,  in  a 
more  striking  manner,  her  beneficent  system.  "The 
'^  desire  which  I  have  always  felt,"  writes  Louis 
XVI.  to  his  High  Admiral,  the  5th  of  June,  1778, 
"  to  soften  the  calamities  of  war,  has  induced  me  to 
"  turn  my  eyes  towards  that  class  of  my  subjects 
"  who  are  devoted  to  commerce  and  fishing,  and  who 
"  have  no  other  means  of  subsistence.  I  trust  that 
"  the  example  which  I  shall  give  to  my  enemies,  who 
"  can  be  governed  by  no  other  principles  than  those 


Chap.  I.  OF  EUROPE.  151 


\ 


Liberality  of  France  low.irds  tlie  Entjlish  fishermen. 

"  sentiments  of  humanity  by  which  I  am  actuated, 

"  will  induce  them  to  grant  the  same  indulgences  to 

"  the  fisheries  that  I  have  consented  to  allow.  I  have, 

"  therefore,  ordered  all  commanders  of  ships,  priva- 

"  teers,  and  cruisers,  not  to  disturb,  without  new  or- 

"  ders,  the  English  fishermen,  nor  to  stop  their  ves- 

"  sels,  not  even  those  laden  with  fresh  fish,  though 

"  they  may  not  have  been  caught  by  these  vessels, 

**  provided  always,  that  they  are  not  armed  for  of- 

"  fence,  and  are  not  convicted  of  having  2:iven  sis:- 

"  nals  that  might  show  a  suspicious  intelligence  car- 

"  ried  on  with  the  ships  of  war  belonging  to  the  en- 

"  amy." 

28.  The  French  government  soon  had  an  oppor- 
tunity of  putting  in  practice  the  philanthropic  princi- 
ples contained  in  this  letter.  A  remarkable  exam- 
ple is  to  be  found  in  the  arret  of  the  king's  council  of 
the  6th  November,  1780.  This  arret,  which  renewed 
the  prohibitions  contained  in  tlie  letter  of  Louis 
XVT.  of  the  5th  June,  was  passed  in  consequence  of 
the  opposition  made  by  the  Chamber  of  Commerce  of 
Dunkirk  to  the  decree  of  the  council  of  Prizes  of 
the  10th  May,  1780,  declaring  valid  the  ransom  of 
the  English  fisherman,  the  Jolin  and  Sarah.  The 
chamber  of  commerce,  in  their  petition,  set  forth,  that 
no  city  in  the  kingdom  was  more  interested  than 
that  of  Dunkirk,  in  maintaining  the  freedom  of  fish- 
ing ;  it  referred  to  a  letter  of  the  minister  of  marine, 
of  the  31st  May,  1778,  containing  the  opinion  of  the 
king  on  this  subject;  and  the  captain  o{  the  French 


152  THE  MARITIME  LAW        Parti. 


Decisions  of  the  French  council  in  favour  of  English  fishermen. 

privateer  himself,  as  soon  as  he  was  informed  that 
the  prize  was  a  fisherman,  was  eager  to  give  a  for- 
mal relinquishment  of  his  claims. 

29.  During  the  different  periods  of  the  revolu- 
tion, the  French  government,  far  from  issuing  de- 
crees, in  opposition  to  those  before  given,  in  regard 
to  the  freedom  of  fisheries,  has,  on  the  contrary, 
uniformly  favoured,  and  extended  their  principles. 
In  the  month  of  March,  1797,  the  executive 
council  authorised  the  municipal  officers  of  Calais, 
to  open  a  negotiation  with  the  English  commandant, 
stationed  at  Dunes,  for  the  full  liberty  of  fishing  to 
the  distance  of  three  leagues  from  the  coast.  In 
the  month  of  July,  in  the  year  1795,  the  com- 
mittee of  public  safety,  sent  back,  without  exchange, 
all  the  English  fishermen  who  were  in  the  diff^erent 
ports  of  the  republic,  not  considering  them  as  prison- 
ers of  war.  This  measure  contains  an  implied  ex- 
pression of  that  regard  which  ought  every  where  to 
be  shown  to  a  class  of  men,  whose  painful  and  not 
very  profitable  labour,  usually  carried  on  by  feeble  and 
aged  hands,  is  entirely  foreign  to  the  operations  of 
war.  Similar  considerations  dictated  the  wise  deci- 
sion of  the  council  of  Prizes,  of  the  29th  July,  in 
the  year  1801,  under  the  presidency  of  M.  Ber- 
thier,  counsellor  of  state,  pursuant  to  the  opinion  of 
M.  Dufaut,  commissary  of  the  government.(149) 

{14-9)  This  excellent  adjudication,  Avas  to  the  following  effect : 
"  The  council  admitting  the  justness  of  the  opinion  of  the  commis- 
"  sary  of  the  government,  and  adopting  the  principles  of  humanity. 


Chap.  I.  OF  EUROPE.  153 

Pliilantliropic  plans  of  tlie  legislators  of  France. 

30.  The  principles  of  the  revolution  inspired  the 
legislators  of  France  with  sentiments  of  moderation 
and  philanthropy.  While  preparing  for  war,  in  order 
to  resist  the  armies  of  the  coalesced  powers,  the 
French  republic  reflected  on  the  means  of  preserv- 
ing nations  from  its  greatest  ravages.  Its  plans 
were  intended  to  support  the  operations  of  industiy 
among  all  nations,  to  maintain  the  benefits  of  com- 
merce, though  surrounded  with  hostile  armies,  and 
in  the  midst  of  an  almost  universal  combustion.  It 
wished  to  behold  on  the  seas,  a  spectacle  like  that  ex- 
hibited in  the  fine  countries,  watered  by  the  Indus, 
and  the  Ganges,  where,  at  the  side  of  armies  com- 
bating and  destroying  each  other,  is  seen  the  hus- 
bandman following  his  plough,  almost  on  the  field  of 
battle.(150) 

"  and  the  maxims  of  the  law  of  nations,  which  it  displays,  order 
"  tliat  the  fishing  smack.  La  nuestra  Senora  de  la  Piedad y  animaSi 
"  carried  into  Cartaya  by  the  French  cruiser  Carmagnole,  togetlier 
"  with  the  fish  laden  on  board,  or  the  net  produce  of  the  sales 
"  which  may  have  been  made  of  the  same,  be  restored  to  the 
"  master  and  commander  of  the  fishing  smack,  or  to  his  authorised 
"  agent,  to  be  disposed  of  as  he  may  think  fit," 

(150)  See  the  excellent  discourse,  delivered  by  Mr.  Garat>  in  the 
council  of  ancients,  on  the  26th  day  of  December,  in  the  year  1799, 
on  the  subject  oi  maritime  captures.  Fishermen,  at  least,  ought  to 
be  protected  from  hostilities.  In  times  of  the  greatest  discord, 
they  were  formerly  spared,  and  lived  in  the  midst  of  public  dissen- 
sions, as  if  their  respective  nations  were  at  peace,  "  While 
"  Charles  VI.  made  great  preparations  at  L'EcIuse,  in  order 
Vol.  I.  U 


154  THE  MARITIME  L AAV        Parti. 

Conduct  of  England  towards  France. 

3 1 .  Such  maxims  have  not  governed  the  conduct 
of  the  English.  Their  kings,  their  ministers,  at  all 
times,  and  even  the  people,  when  excited  by  them, 
have  manifested  a  blind  and  implacable  animosity 
against  France,  which  more  than  once,  according  to 
the  confession  of  that  candid  historian,  David  Hume, 
has  hurried  them  into  the  most  dangerous  measures 
The  English,  every  where,  disseminating  against 
France,  gold  and  corruption,  violating  all  laws,  dis- 
regarding usages,  the  most  sacred  among  polished 
nations,  corrupting  the  commander  and  the  soldier, 
encouraging  treason,  remunerating  perfidy,  and  pen- 
sioning crime,  have  felt  the  importance  of  paralyzing 
the  French  marine,(15l)  and  of  starving  every  coun- 
try whose  inhabitants  were  nautical.  Despairing  of 
a  conquest  by  arms,  they  purchased  Toulon,  that  they 

"  to  have  good  fishing,  the  English,  says  Froissart,  often  went  to 
"  fisJi  below  Boulogne,  and  before  the  port  of  Visaut. — For  fisher- 
"  men  (though  there  may  be  war  between  France  and  England) 
"  never  injure  one  another  ;  they  remain  friends,  and  assist  each 
*'  other,  in  case  of  need,  and  buy  and  sell  their  fish,  whenever 
"  one  has  a  larger  quantity  than  the  other  ;  for  if  they  were  to 
"  fight,  we  should  have  no  fresh  fish."     Part  3.  ch.  41. 

(151)  This  is  the  policy,  with  wliich  England  always  com- 
mences war.  "  The  successor  the  last  war,"  says  Mr.  Adams, 
in  the  house  of  commons,  the  15th  March,  I7S2,  "  was  the 
"  effect  of  a  bold  measure,  adopted  by  tlie  former  administra- 
"  tion,  who,  before  war  was  declared  against  France,  seized  all 
"  her  merchant-ships,  and  by  taking  her  seamen,  rendered  it 
'*  impossible  for  her  to  equip  her  fleets  ;  a  stroke  from  which  tliat 
"  kingdom  did  not  recover,  during  tlie  contir.uance  of  hostili- 
"  ties." 


. 


Chap.  L  OF  EUROPE.  155 


Conduct  of  the  English  at  Toulon. 


might  deliver  it  to  the  flamcs.(152)  They  have  sha- 
ken, in  every  place,  the  torch  of  discord,  for  the 
double,  but  cruel  and  insane  purpose,  of  prolonging 
the  delusion  of  rebellion, and  of  destroying  the  French 
mariners,  whom  they  landed  on  the  western  coasts 

(132)  Having  been  directed  to  set  fire  to  the  unfortunate  city 
of  Toulon,  Sir  Sidney  Smith,  in  a  letter,  tlie  eternal  monument  of 
barbarous  perfidy,  with  a  cool  indifference,  which  makes  one 
shudder,  relates  to  Admiral  Hood,  his  preparations,  his  care,  and 
success  in  destroying  the  principal  establishments  in  the  place  ;  he 
expresses,  at  the  same  time,  his  cruel  regret,  that  it  was  not  in 
his  power  to  exterminate  the  whole,  by  flames.  In  the  follow- 
ing year,  in  the  house  of  commons.  Major  Maitland  accused 
ministers  of  having  deceived  the  French,  at  Toulon,  by  promis- 
ing them  the  constitution  of  1789,  the  enjoyment  of  which  it  was 
not  in  their  power  to  secure  to  them ;  of  not  saving  the  wretched 
and  deluded  inhabitants  of  the  city,  and  of  abandoning  them  to 
the  resentment  of  the  victors.  "  The  proclamation  of  Admiral 
Hood,"  says  he,  "  and  his  manifesto,  replete  with  contradictions, 
were  unworthy  snares  to  entrap  the  French,  and  to  put  them  in 
your  power.  It  is  thus,  that  by  inspiring  them  with  that  courage, 
and  that  determined  resolution,  the  elFects  of  which  you  have 
just  experienced,  you  have  brought  upon  Europe  and  England 
berselfi  all  the  evils  of  a  war,  as  thoughtless  as  it  is  unjust,  as  un- 
necessary in  its  origin,  as  it  is  injurious  in  its  consequences.'' 
In  the  sittings  of  the  house  of  commons,  on  the  21st  January', 
1794-,  Mr.  Fox  observed,  on  this  subject,  "Every  thing  which 
has  passed  at  Toulon,  is  scandalous  and  disgraceful  to  our  arms 
and  to  the  English  name.  I  would  wish  the  world  not  to  believe 
that  we  took  this  city  and  its  marine,  under  our  protection,  for  the 
disgraceful  purpose  of  seizing  the  first  occasion  to  destroy  them. 
I  wish  parliament  to  be  informed  by  what  authority  Lord  Hood 
guaranteed  to  Toulon  the  constitution  of  1789,  by  virtue  of  which 
he  has  destroyed  the  ships  he  received  as  trustee ;  and  why,  if  he 
was  autliorised  to  do  so,  the  destruction  was  not  complete." 


I 


156  THE  MARITIME  LAW        Part  L 

Conduct  of  the  English  towards  the  French  emigrants  at  Qiiiberon. 

of  France,  in  order  to  produce  a  counter-revolution, 
thereby  to  keep  alive  a  fire  which  might,  one  day, 
aid  their  entrance  into  the  country.(153)  In  conse- 
quence of  this  system,  they  have  kindled  all  the  hor- 
rors of  La  Vendee.  On  the  confines  of  the  Deux- 
Sevres,  on  the  borders  of  the  Loire,  and  in  the  heart 
of  Brittany,  they  have  flattered  the  passions  of  the 
people.  In  the  fertile  plains  of  Normandy,  and  to 
the  vicinity  of  Cherbourg,  the  object  of  perpetual 
alarm  to  English  jealousy,(  154)  they  have  nourished 


(153)  When  tlie  emigrant  officers  of  the  French  marine,  disem- 
barked by  the  English  at  Quiberon,  in  order  to  produce  a  counter- 
revolution in  La  Vendee,  were  driven  back  by  the  republican 
army  to  the  sea-shore,  they  had  no  resource  but  to  seek  their  safety 
on  board  of  the  English  squadron,  which  lay  at  anchor,  within  half- 
cannon  shot.  Instead  of  sending  boats  to  receive  them,  and  of 
protecting  them,  in  their  retreat,  by  their  cannon,  the  squadron 
fired  upon  them,  and  cut  them  to  pieces.  More  than  two  hun- 
dred of  them  perished  in  the  sea,  and  the  residue  surrendered 
themselves  prisoners.  A  foreign  minister,  speaking  of  this  affair, 
|n  presence  of  the  English  minister,  and  lamenting  the  fate  of  the 
unfortunate  French  marines  who  had  perished,  the  latter  re- 
plied, "  without  doubt  we  commiserate  the  dead,  but  on  that  day, 
"  we  obtained  a  naval  victory  over  France,  the  consequences  of 
"  which  will  be  more  important  than  all  the  battles  gained  during 
"  a  century." 

(151-)  "  Shall  I  speak  of  the  affair  of  Quiberon,"  said  Mr. 
Sheridan,  in  (he  house  of  commons,  the  30th  October,  1795, 
"  an  expedition  which  no  man,  who  is  not  dead  to  feeling,  can 
think  of  without  indignation  and  horror  ;  an  expedition  atrocious 
and  sanguinary,  in  which  English  blood  has  not  flowed,  but  English 
honour  has  bled,  at  every  pore  ;  fin  abominable  expedition,  which 
will  cover  those  who  undertook  il  with  eternal  infamy  and  oppre- 
brium." 


Chap.  I.  OF  EUROPE.  157 

Speeches  of  Mr.  Dundas,  and  Lord  Loughborough. 

the  hatred  of  the  inliabitants.  Such  are  the  ends 
which  the  English  government  keeps  constantly  in 
view.  Wc  hear,  Mr.  Dundas,  in  the  English  parlia- 
ment, on  the  25th  March,  1801,  while  enumerating  \  , 
the  losses  of  France,  formally  declare,  **  that  the  1 
"  first  principle  of  a  war,  whatever  it  may  be,  is  the 
"  destruction  of  the  commerce  and  colonial  posses- 
"  sions  of  the  enemy."  Lord  Loughborough,  March 
1791,  in  parliament,  exclaimed,  "  the  excessive 
"  ambition  and  insolence  which  appeared  in  the 
*'  councils  of  his  majesty,  have  been  carried  to  such 
"  a  pitch  in  every  part  of  the  world,  that  the  ruin  of 
"  our  empire  will  be  the  consequence.  Like  beasts 
"  of  prey,  we  roam  through  every  region  of  the 
"  globe  in  search  of  victims  for  destruction.  It  is  with 
"  astonishment  and  horror,  that  I  see  the  system 
"  of  ministers,  to  oppress  and  destroy  every  other 
"  nation  :  on  one  side,  vexing,  irritating,  insulting, 
"  on  the  other,   directly  and  openly,  exerting  the 


"  Quiberon,  fatal  expedition  !"  exclaimed  Mr.  Fox,  in  the  same 
sittings  "  which  must  wound  the  soul  of  every  man,  and  make 
the  heart  of  every  Englishman  rise  with  indignation  !  Sad  reverse, 
which  has  done  more  injury  to  our  national  character,  in  tlie  eyes 
of  Europe,  than  any  one  event  of  the  war !  Heaven  is  my  witness, 
that  I  have  always  contended  against  this  mad  project."  * 


"  TIic  above,  and  several  other  quotations,  from  the  speeches  of  the 
Diembcrs  of  the  British  parliament,  to  be  found  in  tliis  article,  .ire  ti-ang- 
latetl  from  the  French,  as  the  originals  were  not  witliin  reach.  It  is  very 
probable,  tliat,  in  tlie  double  process  they  have  unda'gone,  the  exaot  \v«rfls 
•f  tlie  original  have  not  been  reproduced T. 


158  THE  MARITIME  LAW        Parti. 

Speech  of  the  Marquis  of  Lansdown. — Pi'oposals  of  France. 

*'  whole  force  of  the  state  to  crush  and  exterminate. 
"  Can  we  expect  that  enlightened  Europe  will  permit 
"  us  to  pursue  this  career,  and  that  the  people  will 
"  bear  the  burdens  with  which  they  are  loaded  ?" 
Let  the  British  ministers  deeply  reflect  on  what  was 
said  by  the  Marquis  of  Lansdown,  in  full  parlia- 
ment, on  the  2d  November,  1797.  "  Above  all," 
says  he,  "  let  them  endeavour  to  regain  for  us  the 
'*  good  opinion  of  Europe.  Let  them  proclaim  per- 
"  feet  liberty  to  all  neutral  nations,  otherwise  we 
"  shall  be  compelled  to  the  measure,  and  then  it  will 
*'  be  granted  with  an  ill  grace.  The  present  is  a  fa- 
*'  vourable  time  to  conciliate.  If  we  acknowledge 
"^  the  commercial  freedom  of  the  world,  we  shall  be 
"  the  first  to  profit  by  this  magnanimous  and  gene- 
"  rous  system." 

32.  The  constituent  assembly  of  France  propo- 
sed to  the  nations  of  Europe,  the  abolition  of  priva- 
teering, and  the  consequent  restoration  of  the  liberty 
of  the  sea.  During  the  legislative  assembly,  the  same 
measure  was  proposed  to  all  the  maritime  states  in 
which  France  had  any  diplomatic  agents.  Morality 
so  pure,  beneficence  so  decided,  alarmed  some  pow- 
ers, who,  under  the  influence  of  the  British  cabinet, 
remained  silent ;  a  silence  that  amounted  to  a  refusal 
of  their  concurrence.  The  answer  of  England  was 
more  formal.  The  ambassador  of  France,  M.  Chau- 
velin,  wlio  accompanied  this  proposition  with  a  note. 


Chap.  I.  OF  EUROPE.  159 


Answer  of  England  to  the  proposjJs  of  France. 


worthy  of  its  object,  (155)  was  repulsed,  as  if  the  de- 
struction of  the  English  government  had  been  in- 
tended. The  opening  of  the  Scheld  was  the  real, 
though  not  more  legitimate,  motive  for  the  rupture 
which  followed.  The  French  government  did  every 
thing  in  their  power  to  prevent  it.  M.  Marat,  in 
1793,  had  it  in  charge  to  attempt  a  reconciliation. 
His  pacific  mission  produced  no  other  effect,  than  to 
evince  the  desire  of  France  to  preserve  peace  with  a 
nation  that  boasts  of  being  free.  In  refusing  to  con- 
tinue at  peace,  the  English  minister  had  to  stifle  the 
vehement  complaints  of  Sheridan,  Gray  and  Fox  ; 
and  to  be  consistent  with  his  usual  policy,  he  propo- 
sed a  vexatious  bill,  to  compel  all  the  French  settled 
in  England,  on  the  faith  of  the  treaty  of  commerce  of 
1786,  to  depart  from  the  kingdom. 

(155)  "  To  give  to  the  navigation,  maritime  commerce,  and 
"  goods  of  individuals,  the  same  protection  and  the  same  liberty, 
'•'  which  the  law  of  nations,  and  the  universal  consent  of  the  na- 
"  tions  of  Europe,  give  to  the  intercourse  and  property  ofindivid- 
"  uals  on  land  ;  to  suppress,  in  a  word,  that  pernicious  custom, 
"  which  on  occasion  of  the  quarrels  of  states  and  princes,  interrupts 
"  in  every  sea,  the  most  necessary  intercourse,  defeats  those  specu- 
"  lations,  on  which  the  existence  of  people,  strangers  to  those 
"  contests,  often  depends  ;  which  suspends  the  progress  of  human 
"  discoveries,  which  arms  individuals  against  each  other,  delivers 
"  the  property  of  the  peaceful  merchant  to  pillage,  and  devotes 
"  to  death  the  navigator  who  attempts  to  defend  it ;  such  is  the 
"  honourable  object  of  the  proposition  of  France  to  his  Britannic 
"  majesty."  Thus  did  the  minister  Chauvelin,  express  himself, 
in  a  note  addressed  to  Lord   Grcnville,  tlie  C5lh  |ulv,  I'/ 93,  on 


160  THE  MARITIME  LAW        Parti, 

Liberality  of  France. — Injustice  and  tjTanny  of  England. 

33.  The  French  republic,  strong  in  the  victories 
that  have  rendered  it  illustrious,  more  just  and 
more  moderate  than  England,  caused  to  be  inscrib- 
ed on  the  standards  of  the  army  of  England,  these 
remarkable  words :  Liberie  des  mers,  paix  au  monde, 
egalite  de  droits  pour  toutes  les  nationsJ^  In  this, 
there  appears  no  national  egotism,  no  commercial 
ambition,  no  maritime  despotism.  Its  object  was 
merely  to  pull  down  tyranny  and  pride.  The  naval 
despotism  of  England,  on  the  contrary,  has  depriv- 
ed all  nations  of  the  possession  of  that  commercial 
domain,  which  equal  right,  and  the  situation  and 
resources  peculiar  to  each,  enabled  them  to  cultivate. 
The  spirit  of  the  court  of  London,  which  forms  a 
striking  contrast  to  that  of  France,  has,  of  late  years, 
shewn  itself  in  betraying  its  allies,(156)  in  pursuing, 

transmitting  to  him  a  m.inisterial  dispatch,  of  the  I5th  June,  relative 
to  measures  recommended  to  the  maritime  powers,  for  the  pur- 
pose of  abolishing  the  practice  of  privateering,    [io  Course  en  fner.] 

*  Liberty  of  the  seas,  peace  to  the  world,  equal  rights  to  all  na- 
tions. In  January,  ISOl,  some  valuable  books,  magnificently 
bound,  were  presented  to  the  royal  society  of  London,  from  the 
institute  of  France.  A  letter  of  compliment,  accompanied  the 
present,  signed,  Bonaparte,  President  of  the  National  Institute,  end 
first  Consul  of  France.  On  the  letter  was  a  finely  executed  vig-« 
nette,  representing  liberty  sailing  on  the  open  ocean,  in  a  shell, 
with  the  following  motto  :  Liberie  de  nicr.  [Annual  Register, 
1801.] T. 

(156)  How  has  England  respected  her  allies  ?  She  has  always 
made  them  victims ;  she  has  placed  them  between  two  fires. 
When  the  army  commanded  by  General  Serrurier,  in  the  year  1799, 


Chap.  I.  OF  EUROPE.  161 


Unjust  conduct  of  tlie  English  towards  neutrals. 

without  exception,  the  navigators  of  all  countries,  in 
subjecting  ships  and  cargoes  to  pillage,  without  hav- 
ing any  personal  or  direct  injury  to  avenge,  which 
might  serve  as  an  excuse  for  their  depredations.    To 
attack  neutral  ships  laden  with  goods,  free  and  lawful 
in  time  of  war,  is  an  open  violation  of  the  absolute  ma- 
ritime law,  by  virtue  of  which  nations  are  permitted 
to  maintain  intercourse  with  each  other.    To  seize 
vessels,  destined  to  draw  together  distant  regions,  and 
to  distribute  the  harvests  between  peaceful  countries, 
remote  from  each  other,  and  who  take  no  part  in 
the  disputes  of  the  belligerents,  is  a  faithless  derelic- 
tion of  the  general  cause  of  freedom.  If  Montesquieu, 
so  esteemed  by  the  English,  had  lived  long  enough 
to  witness  these  proceedings,  would  he  have  said  of 
that  nation,  "  The  great  charter  of  England  forbids 
"  the  seizing  and  confiscating,  in  case  of  war,  the  ef- 
"  fects  of  foreign  merchants,  except  by  way  of  re- 
marched  into  Tuscanj,    in  order  to  drive  the  English  and  Nea- 
pohtans  out  of  Leghorn,  t!ie  English,  who  had  transported  Nea- 
pohtan   troops  into  this  dutchy  for  their  own  benefit,  when  it  be- 
came necessary  to  evacuate  Leghorn,  were  wholly  occupied  in 
loading  their  vessels  with   the  goods  and  eflVcts  belonging  to  the 
merchants  of  their  own   nation.     They  refused   to  take  off  the 
Neapolitan  garrison,    who  were  obliged  to  embark  in  neutral 
ships.     In  the  same  year,  when,  tiie  army  under  the  command  of 
General  Brune,  compelled  (he  English,    at  the  Hclder,  to  re- 
treat with  disgrace,  the  thunder  of  their  artillery  and  infantry  was 
turned  against  the  Russian  troops,  to  oblige  them  to  sustain,  a  little 
longer,  the  shock  of  the  French  ;  tliis  gave  the  English  time  to  re-em- 
baik  their  own  men,  and  the  Russians  were  made  prisoners  of  war. 
Vol.  I.  X 


162  THE  MARITIME  LAW        I>art  L 

The  English  dread  being  attacked  at  home. 

",prisa]s.  It  is  pleasing  to  see  a  nation  make  this 
"  one  of  the  articles  of  her  liberty. "(157)  It  is  not 
by  these  great  principles  that  the  character  of  this 
nation  is  to  be  decided.  Much  less  are  we  to  judge 
of  her  by  the  flattering  picture  drawn  by  a  French- 
man, on  whom  she  had  conferred  the  most  public 
and  distinguished  marks  of  esteem. 

34.  Neither  the  boldness  with  which  the  English 
enter  on  the  commencement  of  every  war,  nor  even 
the  successes  which  they  know^  how  to  secure,  by 
means  of  which  they  alone  are  capable,  have  de- 
stroyed that  profound  sense  of  their  own  weakness 
which  is  felt,  whenever  they  are  attacked  at  home. 
The  French  marine,  such  as  it  was  at  the  beginning 
of  the  revolution,  appeared  to  the  English  too  form- 
idable a  means  to  support  a  descent,  the  success  of 
which  would  have  decided  the  fate  of  England.  The 
ignorance  that  guided  most  of  the  enterprizes  of  the 
executive  directory,  was  the  cause  of  its  failure  -, 
but  England  experienced  all  the  dread  of  invasion, 
and  the  strong  impression  it  produced  still  re- 
mains.(158)    This  object,  become   more  difficult  of 

(157)  Montesquieu,  Esprit  desLoix,liv.  20,  cli.13.  "  La  grande 
"  charte  defend  de  saiser  at  de  confisquer  en  cas  de  guerre,  les 
"  merchandises  des  negocians  etrangers,  a  moins  que  ce  ne  soit 
"  par  represailles.  II  est  beau  que  la  nation  ait  fait  de  cela  un  des 
"  articles  de  sa  liberty." 

(158)  In  the  year  1797,  fourteen  vessels anchorediii  Bantry  Bay. 
Sixteen  thousand  brave  Frenchmen  waited  for  the  intrepid  General 
Hoche,  in  order  to  land,  but  the  frigate  which  carried  him  did  not 


Chap.  I.  OF  EUROPE.  163 


Fear  and  weakness,  make  England  unjust  and  rapacious. 

execution,  renders  the  English  insolent  and  unjust ; 
the  fear  it  excites  is  considerate,  calculating  on  the 
necessity  which  impels  the  weakest  to  seize  every 
advantage  afforded  by  the  negligence  or  security  of 
the  strongest.  It  is  precisely  from  her  inability  to 
contend,  that  England  fights.  She  is,  at  the  present 
day,  in  the  same  situation  with  the  Roman  empire,  at 
the  period  of  its  decline.  It  can  neither  exist  with, 
nor  without,  soldiers.  When  evils  have  taken  such 
deep  root  in  the  body  of  the  state,  can  we  expect 
any  thing  but  a  course  of  conduct,  inconsiderate  and 
arrogant,  towards  the  rest  of  the  world,  while  it  pro- 
duces its  own  ruin,  misery  and  dishonour?  Every  act 
of  injustice  contains  within  itself,  a  principle  of  de- 
.struction,  that  will  eventually  subvert  the  edifice, 
which  such  action  was  intended  to  support. 

35.  The  continental  powers,  too  long  the  hired 
satellites,  and  blind  champions  of  their  enemy,  en- 
iightened  at  length  by  their  losses,  are  now  sensi- 
ble, that  they  ought  to  separate  their  cause  from  that 
of  England  ;  that  it  is  time  for  them  to  put  an  end  to 
those  odious  and  bloody  contests,  in  which  men  and 
territories  are  put  at  stake,  but  from  which  England 
derives  the  whole  benefit,  in  the  increase  of  her  riches, 


reach  Ireland.  Had  it  nof.  been  for  (.his  secret  cause,  that  prevent- 
ed the  arrival  of  Hochc,  the  world  would  have  been  in  peace,  and 
governments  tranquil.  TJie  attempt  made  in  the  year  I79S,  upon 
Ireland,  where  1050  Frenchmen  spread  terror  into  the  lieart  of 
Great  Britain,  shows  what  Hochc  v.ould  have  done,  had  he  land- 
ed the  year  before. 


164  THE  MARITIME  LAW        Part  I. 


General  peace  received  witli  entliusiasm  by  tlie  English. 

and  the  extension  of  her  commerce.  Abandoned 
by  all  the  coalesced  powers,  who  had,  separately, 
made  peace,  England  appeared,  at  last,  desirous  of  a 
cessation  of  hostilities.  The  French  government  ac- 
ceded to  the  proposal  with  a  good  grace.  After  a 
long  and  painful  negotiation,  the  able  plenipotentia- 
ry at  Luneville,  Joseph  Bonaparte,  had  the  honour 
to  complete,  by  the  treaty  of  Amiens,  on  the  25th 
March,  1802,  the  great  work  of  a  general  pacifica- 
tion, which  was  received  at  London,  and  through- 
out England,  with  an  extraordinary  enthusiasm  that 
evinced  its  necessity.  The  same  enthusiasm,  the 
same  transports  of  the  people,  were  manifested  on 
the  arrival  of  the  French  ambassador,  general  An- 
dreossi ;  these  emotions  were  succeeded  by  sadness 
and  dejection,  when,  at  his  departure,  he  carried 
with  him  the  regrets  of  all  who  knew  him,(159) 

36.  France,  strong  in  its  good  faith,  lived  in  secu- 
rity, in  the  midst  of  that  peace,  which,  at  Amiens,  it 
had  sworn  to  observe,  while  new  plots  were  forming 
in  England  to  violate  this  solemn  treaty,  which  had 
restored  tranquillity  to  Europe.  The  British  min- 
ister reckoned  less  on  the  success  of  the  English  arm.s, 
on  the  number  of  their  ships,  and  the  courage  of  their 
soldiers,  than  upon  the  advantages  of  machinations, 

(159)  It  3  3  with  pleasure  that  I  here  repeat  the  name  of  General 
Andreossi,  my  iearned  friend,  who  acquitted  himself  of  this  import- 
ant mission  with  that  amiableness  and  prudence,  which  characterize 
^d  distinguish  him,  on  every  Qccasiop. 


Chap.  I.  OF  EUROPE.  16:; 


England  attempts  to  destroy  the  treaty  of  Amiens. 

upon  the  vioiation  of  the  laws  of  nature  and  nations, 
and  on  the  corrupting  influence  of  liis  gold.  He  wisli- 
ed  for  war,  that  it  might  furnish  him  with  a  pretext 
for  overthrowing  a  government,  which  he  dreaded 
to  see  consolidated  in  the  hands  of  a  great  man.  He 
attempted  to  attain  his  purpose  by  deceitful  nego- 
tiation. In  spite  of  the  painful  state,  produced  by 
such  a  negotiation,  which,  at  its  commencement,  ex- 
hibited the  most  characteristic  bad  faith,  the  first 
consul  continued  to  employ  every  means  to  preserve 
peace  ;  by  oflkial  notes,  replete  with  wisdom  and 
moderation,  he  did  every  thing,  morally  possible, 
to  reconcile  the  two  governments,  and  to  place  them 
in  a  situation,  in  which  it  might  be  easier  to  nego- 
tiate, and  on  terms  less  inadmissible.  He  could  not, 
however,  succeed  in  producing  the  same  moderation 
in  the  English  minister,  who,  long  accustomed  to  the 
violation  of  treaties,  was  willing  to  add  this  new  in- 
fraction to  many  others,  of  which  he  may  be  ac- 
cused. Hence,  those  suspicions  and  precautions  be- 
fore the  execution  of  the  treaty  of  Amiens  ;  hence, 
the  delay  of  the  evacuation  of  Malta,  of  the  Cape  of 
Good  Hope,  and  of  Alexandria,  the  possession  of 
which  had  been  weighed  in  the  scale  of  interest,  and 
not  according  to  the  tenor  of  solemn  engagements  ; 
hence,  that  contempt  of  the  law  of  nations,  those 
plots  laid  in  England  against  the  tranquillity  of 
France,  those  defamatorv  libels  acjainst  the  person  of 
the  first  magistrate  of  the  republic, (160)  and  the  asy- 


(160)  Kit  is  right  for  England  to  give  tlie  greatest  latiliide  to  (he 
libcrly  of  l!ic  press,  it  is  also  the  public  right  of  all  polished  nation?^ 


166  THE  MARITIME  LAW        Part  I. 

Speech  of  Mr.  Fox. — Libels  on  Bonaparte. 

lum  and  protection  granted  to  men,  who  were  point- 
ed out  by  the  French  government,  as  dangerous  to 
its  peace. 

37.  This  is  not  a  gratuitous  assertion.    Mr.  Fox 
has  furnished  convincing  proof  of  its  truth,   in    his 
speech  in  the  house  of  commons,  on  the  24th  No- 
vember, 1803,  in  which  he  said,  "that  a  journal 
"  printed  at  London,  provoked  the  assassination  of 
**  the  persons  who  governed  in  France  ;  that  the  bar- 
''  barous  Hbels,  within,  as  well  as  without,  the  house , 
"  are  directed  against  the  French  government;" 
and  at  what  time  ?  the  same  orator  asks,   "  at  a  mo- 
"  ment,  when  the  representative  of  our  sovereign 
"  is,  perhaps,  presented,  with  the  usual  ceremonies 
"  to  the  first  consul,  is  it  decent,  is  it  honourable, 
"  for  the  members  to  load  with  opprobrious  epithets, 
"  the  person,  who  is  at  the  head  of  the  French  gov- 
"  ernment?"    Can   there    be  any  doubt   on    this 
subject,  when  the  king  of  England  himself,  by  his 
ambassador  at  Paris,  in  the  face  of  astonished  Eu- 
rope, declared,  that  provided  the  sovereignty  of  Mal- 
ta was  granted  to  him,  he  would  promise  to  take 

and  the  strict  duty  of  the  government,  to  prevent,  to  repress,  and 
punish  all  attacks  which  may  be  made,  by  this  means,  on  the 
rights,  the  interests,  and  honour  of  foreign  princes. 

In  the  house  of  lords,  on  the  20th  December,  1792,  Lord  Lauder- 
dale, reproaching  ministers  for  their  manoeuvres  to  render  popular 
the  war  against  France,  exclaims,  "  One  of  the  most  powerful  of 
"  these  arts,  is  those  atrocious  libels  against  the  French,  the  absurd- 
"  ity  of  which  is  equal  to  their  perfidy." 


Chop.  I.  OF  EUROPE.  167 

Inconsistency  and  perfidy  of  the  English  ministiy. 

measures,  that  the  men,  who,  in  different  parts  of  his 
kingdom,  were  hatching  plots  against  France,  should 
be  effectually  repressed  r(  161)  Could  this  new  pro- 
mise be  more  sacred,  than  that  contained  in  the  trea- 
ty of  Amiens  ?( 1 62)  The  engagements,  then,  of  a  so- 
lemn treaty,  are  not  sufficient ;  the  island  of  Malta 
must  be  given  to  the  English  government,  to  induce 
them  to  do,  what  integrity  demanded  from  one  pow- 
er towards  a 
to  execute ! 


er  towards  another,  and  what  George  III.  had  sworn 


38.  It  must  be  acknowledged,  that  this  conduct  dis- 
covers an  inconceivable  absence  of  mind  in  the  minis- 
ters of  the  English  cabinet.  It  is  no  less  astonishing, 
than  their  notification  of  the  suspension  of  the  gua- 
rantee, promised  by  the  emperor  of  Russia  j  a  no- 
tification contradicted,  at  the  very  time,  by  a  for- 
mal letter  from  that  sovereign. (163)   It  is  in  conse- 

(161)  The  king  of  England  acknowledged,  their  existence,  since 
the  peace  of  Amiens ;  and  avowed,  that  even  during  peace,  these 
dangerous  and  notorious  men,  were  supported  and  protected  bv 
the  British  government. 

(IG2)  The  text  of  the  5th  article  of  the  treaty  of  Amiens,  is  as 
follows  :  "  The  contracting  parties,  shall  use  their  utmost  efforts 
"  to  preserve  a  perfect  harmony  between  their  respective  coun- 
"  tries,  without  permitting  any  act  of  hostihty  whatever,  by 
"  sea  or  by  land,  for  any  cause,  or  under  any  pretext.  They  shall 
"  carefully  avoid  every  thing  which  might,  for  the  future,  disturb 
"  the  happy  union  now  reestablished  between  them  ;  and  shall  not 
"  give  any  succour  or  protection,  directly  or  indirectly,  to  those 
"  who  would  wish  to  injure  any  of  them." 

(163)  The  day  on  which  the  English  ambassador.  Lord  Whit- 
\  orth,  ofticially  announced  the  refusal  of  Russia,  a  courier  from 


168  THE  MARITIME  LAW        Part  L 

Irresolution  and  inconsistency  of  the  English  cabinet. 

quence,  no  doubt,  of  a  similar  distraction  in  the  Eng- 
lish cabinet,  that  we  hear  it  complain  of  delays  in  a  ne- 
gotiation that  had  not  yet  commenced  ;  that  it  has 
made  formidable  preparations  to  resist  armaments,  not 
in  existence;  that,  while  it  evacuated  Egypt,  it  refused 
to  restore  the  Cape  of  Good  Hope  to  the  Dutch  ;  that 
it  afterwards  promised  to  evacuate  the  Cape  of  Good 
Hope,  but  refused  to  give  up  Malta ;  that  it  retract- 
ed that  promise,  and  then  retracted  its  retractation  ; 
that  it  proposed  the  independence  of  Malta,  and  de- 
manded its  possession;  desisted  from  that  demand,  and 
demanded  it  again,  until  it  could  occupy  the  island  of 
Lampedosa,  as  a  military  post;  at  the  same  time,  that 
by  a  secret  article,  the  chief  consul  was  to  engage 
not  to  require  the  evacuation  of  Malta,  before  the 
end  of  ten  years.  As  the  last  result  of  all  this  pue- 
rile irresolution,  and  these  extraordinary  demands, 
disdaining,  for  once,  all  those  pretexts  under  which 
governments  often  veil  their  shame,  the  king  of  En- 
gland keeps  Malta,(164)  and  declares  war  against 

Petersburgh  arrived  from  Paris,  by  -whom  Alexander  renewed  liis 
guarantee,  and  offered  his  mediation,  if  the  two  powers  wished  to 
have  recourse  to  it.  The  English  ambassador  was  instantly  in- 
formed, by  the  minister  of  foreign  relations,  M.  Talleyrand,  of  this 
new  accession  of  Russia,  to  the  guarantee  of  the  island  of  Malta, 
and  he  made  no  other  reply,  than  to  declare  that  he  had  received 
an  order  to  leave  France  in  06  hours.     O  viores! 

(164-)  Among  the  traits  of  English  policy,  the  speech  delivered 
by  Mr.  Dundas,  in  parliament,  the  23d  May,  1803,  is  not  the 
least  remarkable.  "  In  whatever  point  of  view  Malta  is  consid- 
"  ered,  we  shall  see  that  it  is  of  the  highest  importance  to  us. 
♦*  I  maintain  that  this  island  cannot  be  restored  again  to  the  order 


Chap.  I.  OF  EUROPE.  1G9 


Intrigues  of  the  English  to  keep  possession  of  MiUta. 


k 


France,  because  she  will  not  dishonour  herself  by 
tearing  out,  with  her  own  hand,  one  of  the  most  im- 
portant pages  in  the  act  of  pacification.  Could  the 
hand  which  has  guided  the  victorious  armies  of 
France,  which  has  signed  its  treaties  and  its  laws, 
reestablished  peace  in  the  interior,  and  restored 
the  altars  of  religion,  sign  a  secret  and  disgraceful 
agreement,  which  England  attempted  by  menaces, 
to  extort.  (165)  It  must,  then,  be  confessed,  that 
when  the  English  government  concluded  this  peace, 

"  of  St.  John  of  Jerusalem  ;  that  we  ought  to  keep  it  for  ourselves, 
"■  that  we  ought  to  keep  it,  not  only  during  the  war,  hui  forever. 
"  The  war  is  undertaken  for  Malta,  and  Malta  ought,  henceforth, 
"  to  belonjr  to  us  in  full  right." 

Why  docs  England  attach  so  much  importance  (o  the  possession 
of  Malta  ?  Because  she  wishes  to  establish  there  a  Levant  Com- 
pany. Malta  will  be  the  Bombay  of  this  company  :  the  Puchas, 
or  Beys  of  Egypt,  Tripoli,  Tunis,  and  Candia,  of  the  Morea, 
Albania,  Syria,  Smyrna,  &c.  &c.  will  be  the  Nabobs.  They  will 
exrite  them  to  revolt  against  the  Ottoman  Porte,  which  will  figuie 
like  the  court  of  Delhi.  They  will  have  agents  near  all  these  Pa- 
chas and  Beys  ;  they  will  send  some  of  them  to  Malta.  They  will 
scatter  their  gold  with  profusion,  and  pay  liberally  for  all  at- 
tacks they  can  excite  against  French  commerce.  Thus  they  will 
succeed  in  excluding  France,  Spain,  Trieste,  Leghorn,  and  Genoa, 
from  all  trade  in  the  Levant,  and  will  soon  be  hoard  to  say, 
that  the  navigation  in  those  parts,  is  a  prerogative  of  the  British 
crown.  Thus,  with  a  simple  garrison,  and  a  series  of  vile  intrigues, 
England  will  expel  all  Europe  from  the  commerce  of  the  Black  sea, 
and  the  shores  of  the  Levant. 

(165)  Secret  article.  "  His  majesty,  the  king  of  England, 
"  shall  not  be  requested,  by  the  French  governm<iit,  to  evacuate 
"  Malta,  until  after  the  expiration  of  the  term  ol  ten  years." 

Yov..  I.  Y 


170  THE  MARITIME  LAW        Parti. 

England  is  averse  to  peace. 

it  meditated  a  new  war  j(166)  and  while  the  rest  of 
Europe,  wearied  with  misfortunes  and  carnage,  exe- 
cuted with  satisfaction  the  new  act  of  pacification, 
the  cabinet  of  St.  James's,  desirous  of  more  blood,  re- 
fused to  join  in  the  universal  joy,  and  would  not  con- 
sent, for  a  moment,  to  the  repose  of  the  world, (167) 

39.  The  English  government  does  not  consider 
war,  as  taking  up  arms,  to  decide  a  controversy 
founded  in  reason,  but  as  an  attack  hazarded,  in  or- 
der to  begin  an  unjust  quarrel.  Nations,  in  vain,  flat- 

(166)  In  the  debates  which  took  place  in  the  house  of  com- 
mons, in  1791,  Mr.  Pitt,  after  affirming  that  the  cabinet  of  St. 
Jame<;'s,  had  tried  all  possible  means  of  accommodation  with  France* 
expresses  himself  thus  :  "  It  has  been  said,  that  it  was  a  war  of 
"  death,  a  war  of  extermination,  that  we  were  about  to  undertake. 
"  — Yes,  such  is  the  war  we  are  going  to  make. — Again,  it  is 
"  said,  that  it  depends  on  us  alone,  to  live  in  peace,  with  Frencii- 
"  men  !  like  brothers  !  No ;  it  is  prudence  which  commands  us 
"  to  live  with  them  like  enemies." 

(167)  During  the  debates  which  arose  in  the  hoilse  of 
lords,  on  occasion  of  the  last  peace,  all  the  members,  who  were 
ministers,  declared,  w"ithout  shame,  "  that  they  had  made  the 
"  peace,  for  the  purpose  of  collecting  resources  to  recommence 
"  the  war,  whenever  a  favourable  occasion  should  be  presented." 
So  true  it  is,  that  all  the  pacifications  England  has  concluded,  since 
1688,  can  be  regarded  in  no  other  light  than  truces,  intended  to 
enable  it  to  collect  together  means  and  forces,  to  renew  the  war. 
IVIr.  Pitt,  who,  in  1803,  put  himself  at  the  head  of  the  ministerial 
party,  m  the  session  of  the  house  of  commons,  on  tlie  2.Sd  April, 
reproached  the  king's  ministers  "  for  not  having  profited  by  the  in- 
"  terval  of  peace,  to  prepare  for  war.  They  wanted  not"  he 
added,  "  pretexts  for  this,  and  they  had  themselves,  agreed  upon 
"  them." 


Chap.  I.  OF  EUROPE.  171 


The  artfiil  policy,  and  unjust  ambition  of  England. 

— 1: 

ter  themselves  with  the  enjoyment  of  independence. 
England  does  not  wish  the  world  to  be  free.  Affect- 
ing the  absolute  empire  of  the  sea,  faithful  only  to 
the  laws  she  herself  has  made,  she  disarms  with  the 
same  spirit  as  she  makes  war,  that  is,  in  order  to 
reign  over  Europe,  by  means  of  commerce,  and  to 
make  all  nations  tributary  to  her  power.  Prompted 
by  avarice  and  by  fear,  to  acts  of  injustice  and  vio- 
lence, English  policy  is,  now,  forced  to  calculate  the 
depopulation  of  all  agricultural  and  industrious  na- 
tions, for  the  same  reasons  wiiich  liave  induced  it 
to  seek  the  depopulation  of  India.  Englishmen  and 
slaves,  according  to  this  system,  will  one  day  be  the 
only  denominations  of  men  in  the  four  quarters  of  the 
world.  Gold,  machiavelism,  all  the  resources  of  dark 
policy,  will  be  employed  to  attain  this  great  end  ;  and 
until  the  event  shall  be  sufficiently  advanced,  to  ren- 
der it  impossible  for  the  continental  powers  to  re- 
cede, the  English  will  be  incessantly  talking  of  the 
security  of  Europe,  and  of  the  balance  of  its  power, 
in  order  to  incite  them  to  weaken  one  another  by  new 
divisions,  all  the  benefits  of  which  will  be  enjoyed  by 
England.  The  Lacedemonians,  whose  glory  con- 
sisted only  in  amassing  spoils  in  the  midst  ot  carnage, 
the  declared  enemies  of  the  repose  of  Greece,  reck- 
oned peace  in  the  number  of  public  calamities,  and 
terminated  one  war,  merely  to  commence  another. 
They  were  finally  devoured  by  the  fires  which  them- 
selves had  kindled. 

40.  When  the  senate  of  Rome  resolved  to  destroy 
Carthage  to  its  foundations,  the  consul,  C.  Marcius 


172  THE  MARITIME  LAW       Part  I. 

Speech  of  the  Roman  consiJto  the  Carthaginians,  may  be  applied  to  England. 
« 

Figulus,  by  its  order,  delivered  the  following  speech 
to  the  Carthaginians  :  "  It  is  the  sea,  it  is  the  pow- 
"  er  that  you  have  there  acquired,  it  is  those  treas- 
"  ures  which  you  have  drawn  from  it,  that  hasten 
"  your  ruin.    It  is  the  sea  which  has  led  you  to  in- 
"  vade  Sicily,  Sardinia,  and  Spain  ;  it  is  this  that  has 
"  induced  you  to  violate  every  treaty  of  peace,  to  pil- 
"  lage  our  merchant-vessels;  and,  in  order  to  re- 
"  move  the  knowledge  of  your  crimes,  to  blacken 
"  those  who  expose  them.    In  short,  it  is  your  skill 
"  on  the  ocean,  that   has  emboldened  you  to  re- 
"  spect  nothing,  and  to  place  your  glory  in  a  wick- 
"  edness,  which  we  have  not  always  been  in  a  situ- 
"  ation  to  punish."    This  singular  harangue,  with 
the  addition  of  other  reasons,  might  very   well  be 
addressed,  at  the  present  time,  to  the  modern  Car- 
"  thage.  When  we  reflect,"  says  a  late  writer,(168) 
"  that  the  surface  of  the  sea,  on  this  globe,   is  far 
"  more  extensive  than  that  of  the  land,  we  know 
"  not  whether  we  ought  to  smile  with  pity,  or  foam 
"  with  indignation,  at  ^^  itnessing  the  proud  claim  of 
"  this  handful  of  islanders,  to  rule  over  every  sea, 
"  and  to  be  exclusive  masters  of  the  ocean,  while, 
"  according  to  the  best  writers  on  public  law,  they 
"  have  no  appropriate  right  over  the  sea,  except  over 
"  that  portion  of  it  which  may  belong  to  them,  within 
"  reach  of  cannon-shot  from  the  shores  of  England 
"  or  Ireland." 

(168)  See  an  excellent  work,  entitled,  England  in   1800,  \o\. 
1,  page  186. 


Vhap.  I.  OF  EUROPE.  173 


England  is  not  always  succeasfuL 


41.  Humiliation  follows  close  on  pride,  and  those 
whose  hearts  are  too  much  inflated  by  power,  are 
soon  compelled  to  acknowledge  their  weakness. 
Because  she  has  not  been  vanquished  in  a  real  strug- 
gle, proud  England  believes  herself  invincible  !  Yet 
the  cannon  of  Copenhagen  has  proved  that  she  may 
be  resisted.  Latouche-Trcville,  by  diminishing  the 
glory  of  the  haughty  Nelson  at  Boulogne,  humbled 
England,  and  taught  her  that,  one  day,  France  would 
break  her  sceptre  of  the  seas.  Algesiras  is  a  further 
witness  ot  the  defeat  of  rear-admiral  Saumarez,  and 
of  the  glory  of  rear-admiral  Linois.(169) 


(169)  Accustomed  not  to  count  the  number  of  the  English 
ships,  wiUingl)'  accepting  the  terms,  imposed  by  fortune,  ot  fight- 
ing an  enemy  of  superior  force,  'he  French  mariners,  not  long 
since,  made  Algesiras  witness  a  glorious  combat,  maintained  by 
rear-.idmiral  Linois,  with  three  ships  and  one  frigate,  against  six 
ships,  a  frigate,  and  a  lugger,  under  the  command  of  rear-admiral 
Saumarez.  After  an  obstinate  contest  of  six  hours,  no  longer 
able  to  bear  the  increasing  lire  of  the  French,  the  Englisii  cut  their 
cables,  and  sailed  for  Gibraltar,  after  abandoning  the  Hannibal, 
of  74  guns,  which,  during  the  engagement,  stiuck  her  colours. 
Three  English  ships  were  dismasted,  and  the  others  damaged  in 
their  spars  and  rigging. 

The  ship  IViltiam  Tell,  commanded  by  the  brave  vice-admiral 
Decres,  now  the  minister  of  marine,  sold  dearly  the  victory  gain- 
ed by  the  English,  in  1800.  She  fired  twelve  thousand  two  hun- 
dred and  sixty  sliot  ;  her  powder  was  completely  exhausted,  her 
rigging  cut  to  pieces,  and  her  masts  carried  away,  before  she 
struck  to  two  sliips  of  the  line  and  a  frigate,  which  she  engaged 
and  very  roughly  handled. 

Lord  Nelson  was  charged  with  the  destruction  of  the  gun-boats, 
collected   in    the    port  of  Boulogne.       On  the  4-(Ii    of  August, 


174  THE  MARITIME  LAW        Part  I. 


Eng-land  disi-egards  the  rig-lits  of  other  nations. 


V 


42.  The  law  of  force  ought  to  be  executed  with 
more  address  and  less  pride.  Every  nation  feels  it- 
self wounded  by  tiie  conduct  o.t  England.  There 
arc  sacred  laws  of  war,  which  nations  the  most  bar- 
barous observe.  Why  does  England  disregard  aiul 
trample  them  under  foot  ?  Why  does  its  govern- 
ment make  that  a  virtue,  which  other  nations  consi- 
der as  a  crime  ?  Because,  the  first  right  claimed  by 
the  English,  is  that  of  freeing  themselves  from  every 

ISOl,  he  attacked  the  advanced  guard  of  the  flotilla,  with 
thirty  vessels  of  war,  of  all  sizes,  and  was  compelled  to  retire 
with  loss,  after  having  failed  in  his  project.  Ten  days  afterwards, 
be  returned  with  more  ships  of  the  line,  a  larger  number  of  frig- 
ates, brigs,  pinnaces,  and  gun-boats,  and  renewed  the  fight.  In 
spite  of  the  impetuosity  of  the  attack,  directed  by  the  admiral ;  in 
spite  of  the  tremendous  fire  of  the  fleet,  and  the  obstinacy  of  the 
troops,  who  attempted  to  board,  lour  pinnaces  were  taken,  eight 
gun-boats  sunk,  and  the  English  every  where  repulsed,  with  a 
loss  so  considerable,*^  that  their  admiral,  mentioning  the  affair, 
says  "  the  loss  of  so  many  hrave  men  zvas  incalculable." 

M.  Sibille,  captain  of  the  line,  on  the  27th  March,  in  the 
year  1797,  commander  of  the  xebec,  Le  Pierre,  with  six  guns, 
ten-pounders,  and  eight  two-pounders,  was  attacked,  under  the 
fortress  of  Porto-Ferrajo,  by  three  English  brigs,  each  carrying 
twelve  guns  :  he  maintained  a  chase  and  fight,  for  five  iiours,  and 
succeeded  at  last,  in  escaping  the  enemy,  after  doing  him  con- 
siderable damage. 


*  The  loss  of  the  English  was  172  killed  and  wounded;  that  of  the 
French  is  not  knov.n.  For  the  English  account  of  t!ie  affair,  at  Algesiras, 
as  well  as  of  the  attack  on  Boulogne,  in  which  the  circumstances  are  more 
fully  and  impartially  detailed,  see  Annual  Register,  1801.  Boiti  of  these 
attacks,  evinced  more  daririg  courage,  than  prudence  in  the  English T. 


Chap.  I.  OF  EUROPE.  175 

The  spirit  of  domination  pervades  tlie  English  nation. 

restraint,  wliich  an  observance  of  the  principles  of 
the  law  of  nations  might  enjoin.  Mankind  are  often 
blinded  by  pride  ;  and  England  believes  that  her  na- 
val power  will  secure  her  against  all  reprisals.  "  We 
"  shail  Send  a  hundred  sail  of  the  line  to  sea,  and 
"  who  will  dare  to  stir  r"  Such  is  the  ordinary  lan- 
guage of  the  English  minister;  and,  by  a  fatal  blind- 
ness, this  nation  conducts  herself,  as  if  she  had  already 
attained  that  degree  of  power  which  can  forever  im- 
pose on  its  neighbours.  In  every  situation,  she  is  ac- 
tuated by  the  same  spirit :  it  descends  from  the  toot 
of  the  throne,  to  the  lowest  classes  of  society,  and  is 
bl'v-nded  with  all  the  habits  of  life  among  the  people. 
In  England,  a  proverb,  a  trite  saying,  or  a  song,  bears 
the  impression  of  national  pride,  and  aids,  while  it 
reveals,  the  policy  of  its  government.  Thus  warlike 
songs  were  disseminated  in  their  armies,  during  the 
war  with  America.  The  celebrated  ode.  Bide  Bri- 
tannia, sung  at  the  present  day  at  all  their  public  ex- 
hibitions, cherishes  the  confidence  of  the  people, 
who  believe  themselves  inaccessible  and  invincible, 
and  who,  therefore,  brave  the  power,  as  well  as  the 
number  of  their  enemies.  The  British  character  is 
so  well  exhibited  in  the  last  stanza,  recently  added  to 
this  ode,  that  it  may  be  interesting  to  see  it. (170) 

(170)  The  original  is  as  follows  : 

"  Though  haughty  France,  with  Holland,  Spain, 

"  And  Russia  'gainst  thy  power  combine, 
"  Still  thine  shall  be  the  subject  main, 
"  And  every  shore  it  circles,  thine. 


176  THE  MARITIME  LAAV        Parti 


Pretexts  of  England  for  war  ;  its  measui'es  to  secure  its  success. 


These  few  words,  to  use  the  expression  of  Corncille, 
display*  all  England  to  the  eyes  of  its  rivals. 

43.  At  this  moment,  an  attachment  to  the  false 
principle  of  the  legitimacy  of  maritime  empire,  has 
drawn  the  British  government  into  a  war  which  may 
prove  fatal  to  its  power.  Among  the  odious  features 
in  its  character,  which  humanity  must  blush  to  re- 
cord, may  be  reckoned  the  pretexts  published  by  the 
English  government,  for  its  declaration  of  war  against 
France,  and  the  disgraceful  means  it  has  employed 
to  paralyze  the  imposing  forces  of  its  rival.  These 
means,  the  resources  of  cowardice  and  weakness, 
would  have  remained  unknown  to  polished  nations, 
had  they  not  been  adopted  by  England.  What  gov- 
ernment but  this,  would  make  use  of  the  inviolabili- 
ty of  the  diplomatic  character,  to  spread  every  where 
disorder  and  crime.(17 1)  What  government  but  this, 

"  Rule,  Britannia!  Britannia  rule  the  waves  ! 

"  Britons  !  never  shall  be  slaves." 
The  entire  ode,  with  this  addition,  may  be  seen  in  Numbers  7 
and  8,  of  the  Memorial  Anti-Britannique,  for  1805,  by  M.  Bar- 
rere. 

*  Eialer. 

(171)  The  debates  of  the  English  parliament,  present  a  multi- 
tude of  precious  reflections  to  the  historian,  and  throw  great  light 
on  the  cause  of  most  of  the  events  in  France,  during  the  revolution. 
"  Your  efforts  have,  without  doubt,  contributed  much  to  the  estab- 
"  lishment  of  the  system  of  terror,  in  France,"  said  the  respecta- 
ble Duke  of  Bedford,  in  the  house  of  lords,  the  27th  of  January, 
1795,  "  and  our  minister  has  a  large  share  in  those  misfortunes 
"  which  have  followed." 


Chap.  I.  OF  EUROPE.  177 

Intriguing  policy  of  England. — Prosperity  of  France  founded  oi\  commerce. 

would  wish  the  basest  conspiracies  to  be  directed  by 
ministers,  the  representatives  of  their  sovereign. (172) 
But,  though  France  had  more  than  once  experienced, 
that  the  policy  of  the  cabinet  of  St.  James's,  was  not 
under  the  guidance  of  the  sacred  maxims  of  the 
law  of  nations,  the  circumstances  attending  this  last 
event,  have  made  this  truth  more  evident,  at  the  same 
time,  that  the  actual  and  necessary  influence  of  mari- 
time affairs  on  the  fortune  of  the  republic,  have  ren- 
dered its  consequences  infinitely  more  important  and 
decisive.  France  will  receive  a  very  essential  service 
from  the  English,  if  she  establishes  it,  as  a  settled 
maxim  of  state,  that  its  preservation  and  prosperity 
depend  on  its  marine,  and  the  liberty  of  the  seas.  It 
will,  then,  beof  no  consequence,  if  England,  as  she 
has  always  done,  swears  in  her  heart,  even  when 
signing  treaties,  eternal  hatred  to  France. 

In  a  work  entitled,  "  View  of  the  causes  and  consequences  of  the 
"  present  iiar  with  Frmice,"  3(1  ed.  page  27,  Mr.  Erskine,  a  mem- 
ber of  tlie  English  parliament,  speaking  of  the  monstrous  govern- 
ment of  1799,  sa)'s,  "  the  British  minister  was  the  guardian  angel 
"  that  hovered  over  France,  and  the  sole  creator  of  her  ominous  and 
"  portentous  strength. — In  the  same  manner,  the  cruel  confisca- 
"  tions,  and  the  judicial  murders,  which,  under  the  same  tyrannies, 
"  destroying  one  another,  disgraced  the  earlier  periods  of  the  re- 
"  publican  revolution,  may  be  mainly  ascribed  to  the  same  pre- 
"  dominant  causes." 

(172)  See   the  correspondence  of  the  English  minister,    Mr. 
Drake,  with  the  court  of  Bavaria. 
Vol.  I.  Z 


178  THE  MARITIME  LAW        Part  L 

All  nations  interested  to  oppose  the  usurpations  of  England. 
•*: -  ==g 

44.  Frenchmen,  who  have  fought,  during  the  last 
war,  with  as  much  generosity  as  success,  for  their  in- 
dependence and  political  liberty,  will  not,  assuredly, 
hesitate  to  contend  for  the  liberty  of  the  seas.  The 
maritime  powers  of  the  north  of  Europe,  have  alrea- 
dy perceived  the  necessity  of  recurring  again  to  the 
principle  of  free  navigation.  They  have  discovered, 
at  length,  the  true  interests  of  the  human  race.  They 
may,  perhaps,  defer  the  hour  of  vengeance,  the  better 
to  chastise  an  enemy  who  incessantly  provokes  a 
deadly  war  among  nations.  A  new  system  will,  here- 
after, be  opposed  to  its  ancient  despotism.  This  is 
not  a  diplomatic  question,  nor  a  contest  of  particu- 
lar factions.  All  parties  must  be  equally  offended  j 
all  states  are  equally  wounded  by  the  impious  system 
which  the  English  minister  pursues  with  renova- 
ted fury.  To  warn  nations  to  be  on  their  guard 
/  against  the  arts  of  ambition,  to  unveil  its  motives  and 
'  aim,  is  a  duty  prescribed  by  humanity  j  a  prudent 
vigilance  exercised  for  the  common  good.  To  con- 
.  federate  together,  to  punish  the  base  attempts  of  cu- 
pidity, is  to  avenge  the  cause  of  law  and  of  man  j  it  is 
practical  justice.  It  is  right  to  employ  force  against 
those  who  declare  themselves  our  enemies,  who  vio- 
late the  sacred  laws  of  social  intercourse,  who  refuse 
us  our  due,  who  seize  upon  our  portion  of  the  com- 
mon domain  of  nature,  who  seek  to  deprive  us  ot 
those  advantages  which  belong  to  us,  and  to  destroy 
them  for  ever.(173)    The  period  is  not  far  distant, 

(173)  "  Such  a  maritime  league/'  says  M.  Arnould,  in  his  ex- 
cellent  work,  entitled.  Systems  maritime  et  politique,  page  Zil, 


Chap.  I.  OF  EUROPE.  179 

■  '  '   '  ■ 

Opinion  of  Mably,  as  to  the  claim  of  England  to  the  empire  of  the  sea. 

when  the  prediction,  made  fifty  years  since,  by  the 
sage  Mably,  concerning  England,  will  be  fulfilled  : 
speaking  of  the  policy  of  that  country,  he  thus  ex- 
presses himself:  "  The  project  of  becoming  sole  mas- 
"  ter  of  the  sea,  and  seizing  on  all  the  commerce  of 
"  the  world,  is  not  less  chimerical,  nor  less  ruinous, 
"  than  the  scheme  ot  an  universal  monarchy  upon 
"  land.  It  is  to  be  wished,  for  the  happiness  of  Eu- 
"  rope,  that  England  would  be  convinced  of  this 
"  truth,  before  she  learns  it  by  her  own  experience. 
"  But  let  England  abuse  her  strength,  let  her  seek 
"  to  exercise  tyranny  over  commerce,  and  all  those 
"  nations  who  have  ships  and  seamen,  astonished  at 
"  not  having  before  believed  France,  will  soon  unite 
"  together  to  aid  her,  in  avenging  her  wrongs." 

45.  May  the  immortal  Bonaparte,  who,   by  so 
many  brilliant  victories,  has  promoted   this  system, 

"  will  be  alarming  to  England,  who  will  have  to  dread,  at  the 
"  same  time,  the  activity  of  cruisers,  the  revolts  m  Ireland,  de- 
"  scents  on  her  coast,  the  desertion  of  Portugal,  and  from  that 
"  period,  the  diminution  ol  precious  metals,  the  defection  of  her 
"  American  colonics,  the  ruin  of  her  fisheries  in  Newfoundland, 
*'  revolutions  in  India,  disorders  in  her  finances,  and  the  vio- 
"  lent  agitation  of  all  the  constituent  elements  of  her  politi- 
"  cal  machine,  and,  of  every  part  of  its  factitious  prosperity. 
"  Such  is  the  destructive  fate,  which  its  government  is  speedily 
"  preparing  for  Great  Britain,  by  persistmg  in  exhibiting  lo  all 
"  Europe,  as  it  has  done,  during  the  18th  century,  the  English 
"  marine,  like  a  formidable  colossus,  which,  by  its  own  strength, 
"  and  without  continental  aid,  may  triumph  over  every  maritime 
"  confederacy,  if  all  the  nations,  interested  in  the  liberty  of  the 
"  seas,  do  not  unanimously  swear,  eternal  hatred  to  its  tyranny." 


v^ 


180        THE  MARITIME  LAW  &c.    Parti. 

The  friendly  union  of  England  and  France  is  desirable. 

soon  destroy  this  pretended  empire  of  the  seas,*  the 
effect  only  of  pride,  which  dishonours  a  nation  other- 
wise philosophic,  enlightened,  and  generous !  May 
two  nations,  formed  to  esteem  each  other,  be  united 
for  ever,  augment  the  mass  of  knowledge,  for  which 
they  are  distinguished,  and  give  to  Europe  the  pleas- 
ing satisfaction  of  a  maritime  peace,  firm  and  unal- 
terable ! 


*  We  have  never  understood,  that  Great  Britain  claimed  any 
exclusive  empire,  or  sovereignty,  over  the  main  ocean.  All  tlieir 
writers  acknowledge  that  the  high  sea,  is  the  common  pathway  of 
nations,  and  that  whatever  is  done  there,  is  to  be  regulated  and 
decided  upon,  by  the  law  of  nations :  even  their  claim  to  the  do- 
minion ot  the  seas,  which  surround  their  island,  is  admitted,  by 
later  writers,  to  be  extravagant  and  vain.  This  pretended  em- 
pire, or  sovereignty,  is  reduced  to  the  empty  honours  of"  the  flag, 
which  certain  nations  may  have  agreed,  by  treaty,  or  otherwise,  to 
pay,  as  an  ackiio^'.  ledgment  ot  the  superiority  of  the  naval  pow- 
er of  Great  Britain,  in  the  adjacent  seas. — Vide  post T. 


CHAPTER  II. 
OF  THE  TERRITORIAL  SEA.* 

ART.  I. 

Of  the  Empire  of  territorial  Seas. 


§  1 .  1  HE  sea,  as  well  as  the  land,  ought  to  be 
considered  as  consecrated  to  the  wants,  the  con- 
veniences, and  enjoyments  of  man.  In  this  point  of 
view,  it  presents  the  same  properties,  and  the  same 
considerations  that  gave  rise  to  the  establishment  of 
territorial  sovereignty.  All  that  is  said  of  land,  as  to 
the  principles  and  effects  of  domain  and  empire,  is 
applicable,  therefore,  to  territorial  seas. 

2.  When,  says  Bynkershoek,(174)  the  face  of  the 
earth  became  changed  by  occupancy,  and  the  rights 

*  La  mer  territoriale . 

(174)  Bynkershoek,  de  dominio  maris,  cap.  2. /n  privcip.  Sed 
qnemadmodum  simplicissima  sunt  cunciariim  reruvi  initio,  occupatis 
ierris,  non  aliud  viare  occupatum  videri  potest,  quam  quod  terras  al- 
luehat.  Oras  quippe  tantuin  legebant  veteres,  non  ausirn  ulterius  fra- 
giletn  committere  truci,  pelago  ratetn.  Jgiturin  mare  littoribus  prox- 
imum  cum  descenderent,  animo  sibi  hoc  habendi  prcecipuumjvelpisca- 
tationis,  vel  tramxectionis,  xel  qua  alia  caum  ejus  dominium  posses- 
sione  quarebant. 


182  THE  MARITIME  LAW        Parti. 


The  sea  next  the  land  belongs  to  its  owner. — Nature  of  domain. 

of  domain  were  introduced,  the  sea,  which  bathed 
its  shores,  was  not  abandoned  to  its  natural  Hberty. 
Human  affairs,  in  their  commencement,  proceed 
with  the  greatest  simplicity.  In  the  first  ages  of  the 
world,  the  sea  adjav':ent  to  the  coast,  belonged  to  the 
first  occupier  of  the  main  land,  as  well  on  account  of 
its  utility  for  fishing  and  transportation,  as  because  it 
was  considered  as  an  appendage,  or  rather,  an  acces- 
sion to  it. 

5.  Domain  extends  to  those  things  only  which  may 
be  exhausted  by  use,  and  are  easily  occupied.(175) 
The  productions  of  the  sea  are  limited.  The  land 
does  not  yield  the  same  fruits  in  every  region,  nor 
docs  the  sea,  in  all  parts  of  the  world,  afford  the  same 
riches.  Coral,  pearls,  amber,  tunnies,  and  whales, 
which  constitute  the  richest  class  of  marine  produc- 
tions, are  found  only,  or,  at  least,  in  greater  abund- 
ance, in  the  Red  Sea,  on  the  coasts  of  Sardinia,  in 
the  east,  at  Greenland,  and  the  north.*  Can  it  be 

(175)  Nihil  enim  vetat  occupata  principali  re,  etiam  accessiones  oc- 
cupatas  censeri.  Puffendorf  ffe  ohjecto  domin.  lib.  4,  cap.  5,  §  I,  2, 
et  S.    Hertlusen  noUs  ad.  n,  6. 

*  The  enterprise  of  the  Americans,  has  extended  the  whale- 
fishery  to  the  south.  The  daring  spirit  with  which  it  is  carri- 
ed on  by  them,  is  thus  described,  by  a  British  orator,  in  1774: 
"  Pass  by  the  other  parts,  and  look  at  the  manner  in  which  the 
"  people  of  New-England  have,  of  late,  carried  on  the  whale- 
"  fishery.  While  we  are  following  them  among  the  tumbling 
"  mountains  of  ice,  and  behold  them  penetrating  into  the  deepest 
"  frozen  recesses  of  Hudson's  bay,  and  Davis'  straits ;  while  we 
"  are  looking  for  them  beneath  the  arctic  circle,  we  hear  that 
"  they  have  pierced  into  the  opposite  region  of  polar  cold — that 


Chop.  II.  OF  EUROPE.  183 

Property  in  whale,  and  pearl-fisheries. 

doubted,  that  the  rich  pearls  of  Bahrein, ( 176)  el  Ka- 
lif,  and  Ceylon,  may  lawfully  become  the  property 

"  they  are  at  tlie  Antipodes,  and  engaged  under  tlie  frozen  sw- 
"  pent  of  the  south.  Falkland-island,  which  seemed  too  remote, 
*'  and  loo  romantic  an  object,  for  the  grasp  of  national  ambition, 
"  is  but  a  stage  and  resting  place,  in  the  progress  of  their  victo- 
"  rious  industry  ;  nor  is  (he  equinoctial  heat  more  discouraging 
"  to  them,  than  the  accumulated  winter  of  both  the  poles.  We 
"  know  that  whilst  some  of  them  draw  the  line,  and  strike  (he 
"  harpoon,  on  the  coast  of  Africa,  others  run  the  longitude,  and 
"  pursue  their  gigantic  game  along  the  coast  of  Brazil.  No  sea, 
"  but  what  is  vexed  by  their  fisheries.  No  climate  that  is  not  a 
"  witness  io  their  toils.  Neither  the  perseverance  of  Holland^ 
'*.  nor  the  activity  of  France,  nor  the  dexterous  and  firm  sagacity 
"  of  English  enterprise,  ever  carried  this  most  perilous  mode  of 
"  hardy  industry,  to  the  extent  to  which  it  has  been  pushed  by 
"  this  recent  people  ;  a  people  who  are  still,  as  it  were,  but  in 
"  the  gristle,  and  not  hardened  into  the  bone  of  manhood." 
Burkt's  Speech,  for  conciliation  with  the  American  colonies. — Thirty 
years  of  rapid  advancement  towards  maturity,  has  not  abated  the  vig- 
or and  hardihood  of  American  enterprise ;  and,  besides  the  exten- 
sion of  the  whale-fishery,  a  new  source  of  wealth  and  industry,  has 
been  discovered.  Seals  (PhocceJ  are  taken  in  immense  numbers, 
on  the  islands  of  the  pacific  ocean  ;  their  skins  have  become  a  most 
valuable  article  of  commerce.  The  islands,  at  which  they  are 
principally  caught,  are  Falkland-island,  Juan  Fernandez,  Mas- 
safuero,  southern  Georgia,  Tristan  d'Acuna,  St.  Paul,  and  Am- 
sterdam. A  single  ship  has  been  known  to  carry  60,000  seal-skins 
to  the  Canton  market,  where  they  are  exchanged  tor  teas,  silks, 
nankeens,  and  other  productions  of  China.  The  oil  also  of  the 
seal,  as  well  as  that  of  the  sea-elephant,  is  excellent,  and  would 
be  a  valuable  article  ;  but  the  skins  being  the  principal  object  of 
attention,  the  oil  has  been  neglected T. 

(176)  The  island  of  Bahrem  or  Baharin,  in  the  east,  lies  in  the 
Persian  gulph.  Tlie  Portuguese,  when  they  possessed  Ormiis 
and  Moschuta,  were  masters  of  this  island  :  it  belongs,  at  present. 


184  THE  MARITIME  LAW         I'art  L 

In  certain  respects,  the  sea  may  be  appropriated. 

of  an  individual  ?  As  the  sea,  in  regard  to  certain  pro- 
ductions, is  not  inexhaustible  by  use,  and  as  the  peo- 
ple, to  whom  those  favoured  spots  belong,  have  it  in 
their  power  to  appropriate  to  themselves  any  produc- 
tions within  their  reach,  in  the  same  manner  as 
they  have  assumed  the  domain  of  the  lands  they  in- 
habit, reason  dictates,  that  the  sea  should  be  regard- 
ed, in  that  case,  as  susceptible  of  property  3  and  this, 
without  being  repugnant  to  the  principles  of  the  uni- 
versal law  of  nations,  since  it  is  a  consequence  only 
of  the  territorial  domain. (177) 

to  the  Sophi  of  Persia,  who,  by  the  aid  of  the  English,  wrested  it 
from  the  Portuguese.  The  pearl-fishery  of  el  Kalif,  is  found  on  the 
coast  o^  Arabia  Felix,  opposite  Bahrein.  Ceylon,  has  also  a  pearl 
fishery,  in  the  sea  ofManar,  a  large  town  of  this  island.  These 
pearls  are  held  in  the  highest  estimation,  in  the  east,  on  account 
of  their  whiteness  and  brilliancy.  Some  of  them,  but  very  rarely, 
weigh  four  carats.  Large  pearls,  of  an  irregular  figure,  are  caught 
on  the  coast  of  Japan  ;  but  the  Japanese,  are  not  curious  in  their 
gems.  They  fish  also  for  pearls,  along  the  coast,  in  the  gulph  of 
Mexico,  as  well  as  at  Cubagne,  at  five  leagues  distant  from  New- 
Andalusia,  in  the  island  of  Marcherita,  or  the  Marguerites,  at  the 
distance  of  a  league  from  Cubagne,  and  at  Comogate,  near  Terra 
Firma  ;  they  are  found,  also,  in  the  river  dela  Hacha,  called  Han- 
cherie,  and  at  St.  Martha,  about  60  leagues  from  de  la  Hacha. 
Pearls  may  be  obtained,  but  few  in  number,  in  the  Sotifh  sea. 
Scotland  and  Bavaria,  have  their  pearls  too,  but  none  have  yet 
been  found,  that  bear  a  comparison  with  the  oriental  pearls. 

(177)  Grotius  himself,  one  of  the  warmest  defenders  of  the  lib- 
erty of  the  sea,  as  will  presently  be  seen,  acknowledges  this  truth, 
'm\\isvioxk,  de  jure  belli  ac  pads,  lib.  2,  cap.  .3.  §.  S.  M  hoc  ex- 
emplum  videtur  et  mare  occupari  poluisse  ab  eo,  qui  terras,  ad  latus 
nirumqne  possideat  etiamsi  ant  supra  pateat  ut  sinus,  out  supra  et 
infra  ut  f return,  dummodo  non  ita  magna  sit  pars  7naris,  ut  non  cum 
terris  comparala  poriio  eanim,  vidcri  vossit. 


Chai).  II.  OF  EUROPE.  185 

Sovereigns  have  a  right  to  forbid  strangers  entering  their  ports,  &c. 

4.  Every  nation  may  appropriate  things,  the  use 
of  which,  if  left  free  and  common,  would  be  greatly 
to  its  prejudice.  This  is  another  reason,  why  mari- 
time powers  may  extend  their  domain  along  the  sea- 
coast,  as  far  as  it  is  possible,  to  defend  their  rights,  as 
will  be  shewn  in  the  sequel.  It  is  essential  to  their 
security,  and  the  welfare  of  their  dominions,  that  an 
unlimited  freedom  of  approach  to  their  territories, 
should  not  be  allowed  to  every  one,  especially,  with 
ships  of  war,  whose  presence  may  prevent  the  ac- 
cess of  commercial  nations,  and  interrupt  naviga- 
tion.(178) 

5.  If  we  attend  to  what  ancient  writers  have  said, 
on  this  subject,  as  well  as  to  the  history  of  every  age, 
we  shall  find,  that  the  right  of  the  sovereigns  of  the 
sea-coast,  to  interdict  the  ships  of  strangers  from  en- 
tering, or  approaching,  the  harbours  and  roads,  with- 
in their  dominions,  has  been  established  without  in- 
terruption. If  suffered  to  come  within  their  territory, 
it  has  been  in  consequence  only,  of  a  permission  giv- 
en, after  a  demand  made  for  that  purpose,  or  as  a  fa- 

(178)  Paulus,  in  1.  14-.  tit.  10,  lib.  47.  Digest,  dcinj urns. — 
Sane  si  inaris  propriumjus  ad  aliqucm  peitineat,  uti  possidetis  inter' 
dictum  ei  competit,  si  prohibeatur  jus  suum  exercere,  quoniam  ad 
privatnm  jam  causam  pcrtinet,  nnn  ad  piihUcavi  ficec  res,  lit  pote 
cum  dejurefruendo  agatur  quod  ex  prirata  causa  contingat,  non  ex 
puhlica  ;  ad priiatas  cnim  causas  accomniodata  inlerdicla  sunt,  nnn 
ad  publicas. 

Vol.  I.  A  a 


186  THE  MARITIME  LAW        Part  L 

Egf)Ttians  and  Carthaginians  proliibit  sti-angcrs  from  entering  ceitain  ports. 

vour  granted  to  humanity ;  but  we  do  not  ask  as  a 
favour,  or  intreat  for  what  is  due  to  us  by  natu- 
ral right.  As  the  right  of  sovereignty  along  the  sea- 
shore flows  from  the  territorial  domain,  the  sove- 
reign exercises  his  natural  and  legitimate  empire, 
when  he  forbids  the  vessels  of  strangers  to  enter  his 
ports  or  roads,  or  prescribes  to  them  certain  limits  for 
their  a[)proach.  He  has  acquired  this  right,  by  the 
sacred  and  inviolable  law  of  property. (179) 

6.  It  has  already  been  remarked,  that  a  principle 
of  policy  among  the  Egyptians,  induced  them  to  shut 
their  ports  against  strangers,  and,  that  notwithstand- 
ing this  inhospitallty,  they  were  regarded  as  the  wi- 
sest people  of  antiquity.  Carthage,  not  content  with 
loading  the  Libio-Phoenicians  of  Bisacene,  with  heavy 
taxes,  prohibited  them  fromevery  kind  of  commerce 
with  strangers,  as  appears  from  the  ancient  treaties 
formed  between  this  republic  and  the  Romans.  The 
latter  engaged  not  to  navigate  beyond  the  promon- 
tory of  Bcllo,  and  on  this  side  of  that  of  Mastia  and 
Tarseio;(180)  that  is,  on  the  coasts  of  the  Bisacene, 


(179)  Eorwn,  qux  nalurufuerant  communia,  quod  cuiqiie  ohligit, 
id  quisque  teneat  ;  eo  quod  si  qnis  sihi  appelei  violabil  jun  humana: 
societatis.     Cicero,  dt  officio,  lib.   1,  cap.  4. 

(180)  Poiylius,  lib.  3,  p.  284.  Tl,e  promontory  of  Bello,  is 
now  named  cape  Porto  Farina  :  Mastia,  is  cape  Blanco,  and  Tar- 
ssio,  is  t'.at  oi  Scrra.  Montcsqirieu,  in  his  Esprit  des  Loix,  lib. 
2],  c.  11,  says,  that  "  Carthage,  had  a  singular  law  of  nations, 

'  which  sentenced  all   foreigners  to  be  drowned,   who  traded  in 
"  Sardinia,  and  towards  the  pillars  of  Hercules  :  its  politicallaw, 


Chap.  II.  OF  EUROPE.  i87 


The  Greeks  restrain  tlie  navigation  of  the  Persinns. 


and  of  the  district  of  Camisse,  bordering  on  the  great 
Sirte.(18l)  The  Greeks  also  obliged  the  king  of  Per- 
sia not  to  ailo\v  his  fleets  to  approach  their  coasts 
nearer  than  the  distance  of  a  horse  race  ;( 1 82)  he  even 
bound  himself  not  to  navigate,  with  armed  vessels, 

"  was  not  less  extraordinary  ;  it  forbade  the  Sardes  from  cultivat- 
"  ing  the  earth,  under  the  pain  of  death."  "  We  see,  also,  in 
"  tlie  treaty  which  put  an  end  to  the  first  Punic  war,  that  Car- 
"  tinge  was  principally  attentive  to  preserve  the  empire  of  (he 
"  sea,  and  Rome  that  of  the  land," — See  what  has  been  said  a- 
bove,  Art:  2,  §  D,  in  speaking  of  the  Carthaginian  empire  of  the 
sea. 

(181)  In  fertility,  this  district  surpasses  the  rest  of  Africa;  the 
earth  produces,  according  to  Herodotus,  book  \,  ch.  19S,  three 
hundred  for  one.  This  district  is  now  a  part  of  the  province  of 
Mecellatos :  it  is  yet  very  fertde;  but  the  account  of  Herodo- 
tus, appears  exaggerated. 

(1S2)  Plutarch,  in  vita  Cimnnis.  This  horse  race,  called  by  the 
Greeks  »Try  ^j-ojuoo-,  is  a  day's  journey  of  a  horse,  or  the  distance  a 
horse  can  go  in  a  day,  as  is  proved  by  Barbeyrac,  in  his  note  on 
Groilus,  (Dejurt  belli  ac  pads,  lib.  11,  c.  3,  §  15J  from  several 
passages  of  Aristides,  in  oral.  Panatlieniac  ;  to  which  may  be  add- 
ed, the  authority  of  Demosthenes,  a  more  ancient  orator,  (Oral,  de 
falsa  legal.)  in  a  passage,  in  which  he  speaks  of  Callias,  who  was 
deputed,  on  the  part  of  the  Athenians,  to  conclude  this  famous 
treaty.  Grotius,  in  citing  this  passage,  is  deceived,  in  limiting 
the  distance  of  the  day's  journey  of  a  horse,  to  forty  stadii,  which 
was  no  more  than  a  league  and  two-thirds,  reckoning  three  miles 
to  a  league.  The  stadius  is  known  to  be  125  paces.  Plutarch, 
as  Pauhnier  de  Grentemenil  has  observed,  explained  what  was 
then  understood  by  a  day's  journey  of  a  horse,  when  he  says,  to- 
wards the  close  of  his  life  of  Cimon,  that  while  that  general  had 
the  command,  no  Persian  courier,  or  horse,  dared  come  within 
ibur  hundred  stadii,  that  is,  sixteen  leagues  and  two-thirds,  of  the  sea. 


188  THE  MARITIME  LAW        I'art  I. 

Treaties  between  ancient  states,  as  to  the  extent  of  navigation. 

within  the  Cyanean  rocks,  and  the  Chelidonian  isl- 
ands.(l83) 

7.  In  the  treaty,  which  suspended,  by  a  year's 
truce,  the  Peloponnesian  war,  there  is  an  article  men- 
tioned by  Thucydides,  that  prohibited  the  Lace- 
demonians from  sending  any  ships  of  war  to  sea,  or 
any  vessels  of  more  than  twenty  tons  burthen.(l84) 

In  the  treaty  of  peace,  concluded  between  Rome 
and  Antiochus,  this  prince  is  prohibited  from  having 
more  than  twelve  ships  of  war,  to  keep  his  subjects 
in  obedience. (185)  Another  article  in  the  same  trea- 
ty,(186)  purports,  that  the  vessels  of  Antiochus  should 
remain  on  this  side  of  the  territory  of  Calicadna,  and 
oi Sarpcdon,  unless  they  were  obliged  to  go  further,  to 
carry,  either  the  tribute  which  this  prince  was  bound 
to  pay,  or  ambassadors,  or  hostages.  In  a  law  in  the 

We  may  further  remark,  with  Barbeyrac,  a  mistake  into  which 
Eisenchmid  falls,  in  his  treatise  de  Ponderib.  et  Mens.  Veterutn,  8fc. 
This  learned  author,  confounds  Ittwwocp  ^^oijlckt,  with  what  Plutarch, 
in  his  life  of  Solon,  simply  calls  Jw'wJxou,  which  contained  four  sta- 
dii,  or  500  paces  ;  but  the  latter  word,  signifies  the  space  of 
ground,  that  a  horse  runs  over,  when  he  goes  at  full  speed,  in  a 
race,  which,  it  is  evident,  cannot  be  a  day's  journey. 

(183)  Grotius,  de  jure  belli  ac  pads,  lib.  2,  cap.  3,  §  15. 

(184.)  Thucydides,  lib.  4,  cap.   118. 

(183  Appian,  debelh  Syriaco,  p,  181. 

(186)  Titus  Livius,  lib.  28,  cap.  38. 


Chap.  II.  OF  EUROPE.  189 


Restrictions  laid  on  foreign  vessels  l)y  tlie  Eg)ptians. 

codeof  Justinian,(187)  we  observe,  that  in  the  time 
of  the  lower  empire,  a  treaty  was  concluded  between 
the  Romans  and  Persians,  by  which  it  was  agreed, 
to  this  effect :  Mercatores  tarn  imperio  nostra,  qiiam 
Pevsarum  regi  subjectos  ultra  ea  loca  in  qnibiis  fede- 
ris  tempore  cum  memorata  natione  nobis  convenit : 
Niillus  igitur  post  liac  imperio  nostro  subjectus  ultra 
Nisibin,  Callinicum,  et  A?'ta.vatam,  emendi,  seii  ven- 
dendi  species  causa  prqficisci  audeat ;  and  the  reason 
of  the  prohibition  is  given  ;  Ne  alieni  regni  (quod 
non  cotivenitj  scruteritur  arcana. 

8.  Sometimes,  a  free  navigation  was  allowed  to  al- 
lied nations,  but  on  condition  that  their  vessels  should 
not  touch  at  a  certain  port ;  that  the  goods  should  not 
be  exposed  to  sale,  except  at  a  particular  place  of 
trade,  designated  by  the  treaty.  AVe  read  in  Herodo- 
tus,(188)  that  Amasis,  king  of  Egypt,  imposed  a  law 
on  all  foreigners,  trading  with  his  subjects,  that  they 
should  have  free  access  only  to  the  city  of  Neucra- 
tis,  a  commercial  place  5  and  if  they  touched  else- 
where, they  were  bound  to  make  oath  that  they 
were  compelled,  by  stress  of  weather ;  they  were  then 
permitted  to  sail  to  the  mouth  of  the  Canopus,  or  if 
they  could  not  reach  so  far,  to  send  their  goods  in 
boats,  up  the   river.    The  senate  of  Rome  made  a 


(IS7)  Code,  lib.  iv.  tit.  63,  1.  4,  de  commerciis  et  mercator- 
ibus. 

(188)  Herodot.  Iiistor.  lib.  2,  cap.  188. 


190  THE  MARITIME  LAW        Parti, 


Modern  examples  of  restraints  on  navigation  in  certain  places. 


decree,  by  which  they  constituted  Pompey,  general 
of  the  sea,  to  clear  the  coasts  of  the  republic  of  pi- 
rates, who,  at  that  time,  infested  the  Mediterranean  % 
and  his  command  was  extended  to  the  distance  of  four 
hundred  stadii,  about  fourteen  of  our  leagues.  The 
senate  supposed  the  coast,  which  comprehends  the 
land  as  well  as  the  sea,  extended  fourteen  leagues  on 
the  main  land,  and  fourteen  leagues  to  sea. 

9.  Modern  history,  in  like  manner,  furnishes  ma- 
ny examples  of  treaties  of  commerce,  of  various  kinds, 
among  nations,  and  of  particular  prohibitions,  since 
a  more  extended  navigation  has  made  them  ac- 
quainted with  new  sources  of  wealth.  The  kings  of 
Castile  and  Portugal,  having  discovered,  about  the 
same  time,  new  routes  on  the  ocean,  divided,  be- 
tvi-een  them,  the  navigable  world.  Elizabeth,  queen 
of  England,  concluded  a  treaty  with  Sebastian,  king 
of  Portugal,  in  which  the  English  were  prohibited 
from  navigating  in  the  seas  of  countries,  conquered 
by  the  Portuguese.  Disputes,  afterwards,  arose  be- 
tween the  Portuguese  and  English  merchants.  The 
latter,  subsequent  to  the  year  1552,  carried  on  with 
the  negroes  of  Guinea,  on  the  coast  of  Africa,  a  very 
lucrative  trade  in  gold  dust :  the  former,  who  first  dis- 
covered the  coast,  resorted  to  arms,  to  restrain,  as 
far  as  possible,  this  commerce.  They  often  fought, 
and  captured  each  other's  vessels.  The  king  of  Por- 
tugal, desirous  of  restoring  a  good  understanding  be- 
tween the  two  nations,  sent  Francis  Gerard  to  Eng- 
land, to  treat  with  Elizabeth.   This  envoy  succeeded 


Chap.  11.  OF  EUROPE.  191 


Treaties  between  various  powers,  restricting  navig^ation. 


in  concluding  a  treaty,  by  which  the  English  were 
permitted  to  trade  only  with  the  kingdoms  of  Portu- 
gal and  AIgarva,the  islands  of  Madeira,  and  the  A- 
zores,  and  on  the  coast  of  Barbary :  all  the  Portu- 
guese possessions  in  the  Indies  were  expressly  ex- 
cepted.(189)  Philip  IV.  king  of  Spain,  in  the  treaty 
of  Munster,  in  the  year  1648,  by  which  peace  was 
concluded  with  the  states  general  of  the  United  Pro- 
vinces, agreed,  by  the  5th  and  6th  articles,  that  the 
subjects  of  Spain  should  not  extend  their  commerce 
any  farther  in  the  Indies ;  a  stipulation  which  after- 
wards occasioned  very  warm  disputes  between  the 
two  countries. 

10.  Navigation  is  further  limited,  when  a  particu- 
lar route  is  prescribed  to  navigators.  Thus,  the  king 
of  Portugal,  in  the  21st  article  of  the  treaty  made  in 
1669,  with  the  United  Provinces,  stipulated,  that  the 
Dutch  should  not  go  in  a  direct  course  to  Brazil,  but 
that  in  going  and  returning,  they  should  touch  at 
Portugal,  and  pay  there  the  same  duties  as  the  Por- 
tuguese. Several  of  the  sovereigns  of  India  do  net 
allow  European  vessels  to  enter  into  every  part  of 
their  dominions  without  distinction  \  but  only  at  cer- 
tain ports  ;  nor  do  they  suffer  merchants  to  trade 
where  they  please,  but  only  at  particular  places  de- 
signated for  commerce. (190)   During  the  war  be- 

(189)  Camden  anaal.  Briiann.   1571. 

(190)  Tavernier,  Voyage  aux  I  tides,  liv.  1. 


i 


192  THE  MARITIME  LAW        Part  L 

Various  treaties  defining  the  limits  of  navigation. 

tween  Spain  and  the  United  Provinces,  James  I. 
king  of  England,  caused  certain  limits  to  be  fixed 
along  the  coasts  of  his  kingdom,  within  which  he 
declared  he  would  not  suffer  any  belligerent  power 
to  pursue  his  enemy.  He  further  made  known, 
that  to  maintain  this  prohibition,  he  should  keep 
ships  of  war  to  convoy  all  such  vessels,  as  wished  to 
go  in  or  out  of  his  ports. (191)  In  a  treaty,  dated 
the  14th  September,  1689,  between  the  king  of 
France  and  the  dey  of  Algiers,  it  was  stipulated, 
that  it  should  be  renewed  at  the  accession  of  each 
dey,  and  that  the  Algerines  should  not  make  any 
prizes  within  ten  leagues  of  the  coast  of  France. 
Russia,  in  our  time,  has  followed  this  example  in 
the  last  wslX  she  carried  on  with  the  Ottoman  Porte. 
France,  Tuscany,  the  republics  of  Venice  and  Ge- 
noa, did  the  same  in  the  war  between  England,  and 
the  United  States  of  America. 

1 1 .  Thus,  as  often  as  reasons  of  state,  or  any  other 
public  consideration  may  require  a  government  to 
prohibit  foreigners  from  navigiiting  in  their  territorial 
seas,  it  may  lawfully  be  done  without  infringing  gen- 
eral liberty,  or  offending  against  the  laws  of  na- 
ture.(192)    On  the  same  principle,  is  founded  the 

(191)  SelJen.     Mare  Clausum,  lib.  2. 

(192)  Singularibus  pactis  populonim  et  principum  conventis  com- 
nterciorum  jura  contineri,  et  peregrimim  fnihus  arcere,  atque  etiam 
fines  praterrectwn  ejicere  licet  ;  non  7nodo  si  helium  indictum  sit, 
vernm  etiam  ipse  pads  tempore,  ne  civium  mores  peregrinorum  con- 
siietudine  corriimpantur .     Bodinus,  de  repiihlica,  lib.  i,  cap.  Let 


% 


Chap.  11.  OF  EUROPE.  193 

Admission  of  foreign  armed  ships  into  port :   Mare  libei-uni,  mare  clausunj. 

usage,  constantly  followed  by  the  powers  of  Europe, 
of  not  admitting  into  their  ports,  whole  fleets  of  other 
nations,  but  only  a  certain  number  of  ships,  except 
they  belong  to  their  allies. (193) 


ARTICLE  II. 

Of  the  Extent  of  a  territorial  Sea. 

§  1.  HAVING  established  the  general  principles 
on  which  the  empire  of  territorial  seas  is  founded,  it 
remains  to  define  what  is  meant  by  the  terms,  open 
sea,  and  inclosed  sea,*  that  we  may  better  ascertain 
what  ought  to  be  comprehended  under  the  denomi- 

lib.  6,  cap.  2.  Consequens  €st,iit  urgente  homines  a  negaiiva  ilia  com' 
tnuniotie  discedere,  udcoque  dominium,  quod  comynunioni  illi  opponi- 
tur,  introducere  animo  potuerint.  Heineccius,  Jui'e  Nat.  et  Gent, 
lib.  I,  cap.  9,  §  234.     SeJden,  Loc.  Cit. 

(193)  Mably,  Droit  public  deV  Europe,  torn.  2,  p.  300.  "A 
"  regard  des  vaisseaux  de  guerre,  il  est  d'usage  de  regler  le  nom- 
"  bre  de  ceux  qui  peuvent  entrer  dans  un  port,  et  ce  nombre  est 
"  ordinairement  de  six  vaisseaux."  In  the  treaty  concluded  be- 
tween England  and  Holland,  in  1667,  confirmed,  by  subsequent 
treaties,  the  4th  article  fixes  the  number  of  ships  of  war  at  eight 
that  may  be  allowed  to  anchor  in  their  respective  ports.  In  tlie 
treaty,  concluded  between  the  French  republic,  and  the  kmg  of 
the  two  Sicilies,  the  llth  October,  1796,  it  is  agreed,  by  the  4th 
article,  that  the  number  of  armed  ships,  received  mto  their  ports, 
shall  not,  at  most,  exceed  four. 

*  Marc  Uberiim  .-^Mare  clausum. 
Vol.  T.  Bb 


194  THE  MARITIME  LAW        Part  1. 


What  is  territorial  sea. — Opinions  of  WTiters  differ. 


nation  of  territorial  sea,  and  to  corroborate  the  opi* 
nion  advanced  in  the  next  article,  as  to  the  extent  of 
this  empire.  It  is  certain,  and  all  writers  on  this  sub- 
ject have  agreed,  that  that  must  be  called  an  inclosed 
sea,  the  shores  of  which,  like  great  gulphs,  as  well 
as  the  mouth,  communicating  with  the  high  sea,  be- 
long to  one  nation. 

2.  The  authors,  who  have  written  on  maritime 
rights,  are  not  agreed  as  to  the  claims  of  certain  pow- 
ers to  the  sovereignty  over  those  gulphs,  whose  shores 
do  not  wholly  belong  to  them  ;  such  as  that  of  the 
ancient  republic  of  Venice,  over  the  Adriatic  sea, 
and  that  of  England  over  the  English  channel.*  They 
equally  differ  in  opinion  in  regard  to  certain  tracts  of 
sea,  not  forming  a  gulph,  as  that  of  the  Ligurian  sea, 
in  relation  to  the  republic  of  Genoa. 

3.  Writers  are  still  more  divided  in  opinion  as  to 
the  claim  to  a  general  sovereignty  of  the  sea,  assert- 
ed by  some  powers,  in  the  height  of  their  prosperity, 
and  founded  only  on  the  superiority  of  their  maritime 
strength,  or  the  celebrity  of  the  victories  they  have 
gained  :  a  pretension  which  must  appear,  to  every 
just  and  considerate  mind,  illegal,  and  injurious  to 
the  rights  of  mankind,  "  What  would  they  think," 
says  Galliani,  in  speaking  on  this  subject,  *'of  asove- 
"  reign,  who,  having  two  hundred  thousand  men  in 
"his  pay,  should,  for  that  reason,  suppose  himself 


■''  La  Manche, 


Chap.  IT.  OF  EUROPE.  195 

General  sovereignty  of  the  sea,  absurd  and  unjust. 

"  the  master  of  those  princes  who  had  only  thirty  or 
"  forty  thousand  men  in  their  service  ?  Would  it  not 
"  be  confounding  the  ideas  of  right  with  those  of 
"  power,  and  serve  to  establish  a  theory  always  un- 
"  just,  often  arrogant,  and  sometimes,  in  spite  of  its 
*'  success,  vain  and  ruinous  ?"( 194)  It  follows,  there- 
fore, that  there  can  be  no  just  title  to  the  sovereignty 
of  these  seas,  any  more  than  to  that  of  the  high  sea, 
unless  there  have  been  particular  treaties  to  that  ef- 
fect ■,*"   and  these  w^ill  be  binding  on  those  nations 


(I91-)  Galliani,  de  Doveri  de'  Principi  neutrali  in  tempo  di  guer' 
ra,  etc.  lib,  1, 

*  See  on  this  subject,  the  commentary  of  Valln  on  the  marine 
ordinance,  vol.  2,  book  8,  page  689,  ed.  Rochelle,  1776. 

A  very  late  writer.  Dr.  Arthur  Browne,  professor  of  the  civil 
law,  in  the  university  of  Dublin,  in  a  recent  work,  entitled,  A  com- 
pendious viexv  of  the  ciril  law,  and  of  the  law  ofadtniralty,  makes  the 
tollowing  judicious  remarks,  on  this  subject : — "  The  disputes  about 
"  Mai-e  clauswH  and  Mare  liberum,  engrossed,  in  the  last  century^ 
"  the  attention  of  all  Europe.  They  were  occasioned  by  the  claim 
''  of  the  English  to  the  dominion  of  the  neighbouring  seas,  even  as 
"  far  as  the  opposite  coasts ;  a  claim,  which  could  have  been  fomid- 
*■'  ed  only  in  treaty,  and  if  it  rested  merely  on  use,  was  supported 
"  solely  by  power ;  the  licence  of  Britain  was  the  sole  key  to  the 
"  navigation  of  those  seas  ;  the  claim  was  extravagant  as  it  was 
"  haughty ;  the  sea,  at  least,  out  of  cannon-shot  of  the  coast,  is 
"  common  to  all ;  yet  it  was  supported  by  the  learned  Selden,  and 
"  required,  at  that  time,  confutation  from  the  able  pens  of  Grotius 
"  and  Bynkershock.  I  do  not  mean  to  impeach  that  dominion  of 
"  the  sea,  and  respect  demanded  by  the  British  flag,  which  parti- 
"  cular  treaties  concede,  or  which  the  general  consent  of  Euro- 
"  pean  nations  grants,  in  the  four  seas,  to  the  undisputed  superiority 
"  of  the  naval  power  of  Britain."-— Vol.  2,  p.  9....T, 


196  THE  MARITIME  LAW        Part  L 


Difference  of  opinion  as  to  the  nature  and  extent  of  territorial  seas. 

^*  ■  ■  ~ 

only  who  are  parties  to  them ;  but  are  no  way  obli- 
gatory ov\  others,  against  whom  you  cannot  set 
up  a  tacit  consent,  or  absolute  neglect  of  frequent- 
ing certain  seas ;  a  non-usage  which  some  have, 
in  vain,  wished  to  have  considered  as  a  prescrip- 
tion.(195) 

4.  Though,  at  the  present  day,  there  is  but  one 
sentiment,  among  writers,  on  this  subject,  as  will  be 
shewn,  in  the  following  article  ;  and  though,  accord- 
ing to  the  consent  of  all  maritime  nations,  it  cannot 
be  questioned,  that  the  nation  in  possession  of  the 
shore,  is,  at  the  same  time,  sovereign  of  the  adjacent 
sea,{l 96)  yet  there  is  not  an  unanimity  of  opinion, 
and,  much  less,  an  universal  agreement,  among  na- 
tions, (so  necessary  for  the  good  order  and  interest 
-of  commercial  states)  either  as  to  the  nature  or  the 
extent  of  this  sovereignty.  These  opinions,  more- 
over, have  varied  in  different  ages,  as  much  as  the 
different  systems,  adopted,  as  to  the  extent  of  terri- 
torial seas. 

5.  Since  the  time  of  the  celebrated  Baldus,  it  has 
been  asserted,  that  the  territorial  sea  extended  sixty 
miles  from  the  shore.  In  the  rubrick  to  the  title,  Dc 
rerum  divisione,  (Digest,  lib.  1,  tit.  8,)  and  to  the  3d 


(195)  Puffendorf,  de Jure  Nat.  ei  Gent.  lib.  4,  cap.  5,  et  6.    Byn- 
kershoek,  de  Domin.  Mar.  cap.  1,  et  9. 

(196)  Bynkershoek,  de  Dom.  Mar.  cap.  I,  et  9.     Heineccius^ 
torn.  2^  exercit.  8,  cap.  I,  §  1,  2,  et  3. 


Chap.  II.  OF  EUROPE.  197 


Opinions  of  various  writers. 


Jaw  of  the  Code,  (lib.  4,  tit.  33,)  de  naiiticofanwre, 
Jie  appears  to  adopt  that  principle.  Bodinus,(197) 
as  well  as  Targa,(198)  is  of  the  same  opinion. 
LoccENius(199)  has  fixed  the  extent,  at  the  distance 
of  two  days  journey  from  the  shore  ;  and  Grotius 
limits  it  to  that  point  which  can  be  defended  from 
the  land. (200) 

6.  The  greatest  number  of  writers,  however,  carry 
the  extent  of  dominion  to  the  distance  of  one  hundred 
miles. (201)  This  opinion,  though  not  supported  by 
demonstrative  reasons,  has  so  far  prevailed  in  our 
days,  that  it  has  been  adopted  as  a  fundamental  rule 
of  public  law,  by  force  of  which,  sovereigns  have, 
without  reserve,  disposed  of  the  sea,  to  that  distance 
from  the  land.  An  instance  of  this  is  to  be  found  in 
the  diploma  given  by  king  James,  of  Arragon,  to  the 
city  of  Cagliari,  in  Sardinia,  dated  at  Barcelona,  23d 
August,  1 327,  from  which  the  following  is  an  extract : 

(197)  Bodin,  de  Repressaliis,  cap.  ult.  et  de  Repiiblica,  lib.  1, 
cap.  10.  Jure  quodammodo  principum  oinnium  niari  accolarvm 
communi  receplum  est,  ut  sexaginta  viilUarihus  a  littore  princcps  le- 
gem ad  litus  acccdentihus  dicere  possil,  alque  idjudicalum  esse  in  cau- 
sa ducis  Allobrogmn. 

(198)  Targa,  Ponderazioni  marittime,  ch.  2,  n.  3. 

(199)  Loccenius,  de  Jure  marit.  lib.  l,cap.  4,  §  6. 

(200)  Grotius,  de  Jure  bel.  et  pac.  lib.  2,  cap.  .S ,  §  1 3  et  U,  n.  2. 

(201)  Solorzan,  de  Jure  India,  lib.  2,  cap.  6,  n,  22,  et  lib.  3» 
cap.  3,  n.75,  et  sequent.  Casaregis,  de  Commac.  disc.  136,  n.  1> 
and  2,  et  disc.  17+,  n,  12,  et  sequent,  D'Habreu,  sobre  las presas, 
oap.5,  n.2. 


198  THE  MARITIME  LAW        Parti. 

Grant  of  James,  king  of  Arragon. — Opinion  of  Valln. 

"  Assignamus,  damus  et  limitamus  perpetuo  cas- 
"  tro  jam  dicto  Calaris,  videlicet,  versus  villam  De- 
"  cimi  usque  ad  villam  ipsam  Decimi  exclusive,  in- 
"  elusive  vero  damus  dicto  castro  pro  termino  loca 
"  vel  villas,  quae  sequuntur,  videlicet,  Sancta  Gilla 
"  Pirri,  Sovetano,  Pauli  Palma,  Selargio,  Quarto, 
"  Toto  Quarto  Jossu,  Quarto  Bonino  Cepolla,  cum 
"  capite  de  S.  Ella ;  nee  non  terminos  eorumdem  lo- 
"  corum,  et  etiam  castrum  et  villam  de  Bonarice  et 
"  alia  castra  loca,  et  casalia,  infra  hos  limites  consti- 
"  tuta,  et  intiis  mare  centum  milHan'a  ;  salvo  tamen 
"  et  nobis,  et  nostris  semper,  et  in  omnibus  retento 
**  jure  portus  et  aliarum  nostrarum." 

7.  Valin,  in  his  commentary  on  the  marine  ordi- 
nance of  France,  of  1681,  lib.  5,  tit.  1,  combats  the 
last  opinion  ;  and,  in  order  to  fix  the  extent  of  the 
sea,  which  ought  to  be  subject  to  the  dominion  of  the 
proprietor  of  the  adjacent  shore,  he  proposes  to  try  the 
sounding  lead,  by  means  of  which  a  precise  limit 
may  be  assigned  to  the  territorial  sea,  at  the  place 
where  the  lead  will  no  longer  reach  the  bottom.  But 
Valin  admits  the  insufficiency  of  this  mode,  in  the 
case  where  the  coast  is  so  steep,  that  soundings  can- 
not be  found  at,  or  near  the  land.  In  such  a  case,  he 
wishes  the  extent  of  maritime  jurisdiction  to  be  lim- 
ited by  the  reach  of  a  cannon-shot,  and  not  further. 
*'  For  in  short,"  he  observes,  "  the  ocean  belongs  to 
"  no  one,  and  the  conclusion  naturally  to  be  drawn 
*'  from  this  isj  that  all  nations  are  permitted  to  navi- 
*'  gate  it ;  so  that  one  nation  cannot  deprive  another 


Cluq).  11.  OF  EUROPE.  ic)C) 


Opinion  of  Valin  as  to  the  extent  of  maritime  jurisdiction. 

"  of  this  liberty,  without  injustice,  and  without  a 
"  boundless,  and  even  extravagant  ambition."* 

8.  What  has  just  been  cited  from  Valin,  ought  to 
be  regarded  as  the  mere  observation  of  the  author, 
who  acknowledging  the  necessity  of  fixing  the  pre- 
cise limits  of  maritime  sovereignty,  determines  to 
adopt  the  distance,  established  by  different  treaties 
of  peace  and  commerce,  of  two  leagues  from  the 
coast ;  so  that  beyond  that  distance,  navigation  ought 
to  be  free,  and  exempted  from  all  visits  of  revenue 
officers,  or  guar  da-cos  (as  ;  and  within  which  dis- 
tance, every  ship  may  be  considered  as  liable  to  the 
suspicion  of  illicit  trade,  and,  consequently,  subject 
to  visitation  and  search,  and  the  goods  to  forfeiture, 
if  the  captain  does  not  prove  that  he  has  been  com- 
pelled, by  foul  weather,  to  approach  so  near  the 
coast.  He,  at  the  same  time,  considers,  that  this  rule 
does  not  prevent  the  sovereignty  of  the  sea,  nor  the 
jurisdiction  and  right  of  fishing,  from  extending  be- 
yond two  leagues,  either  by  virtue  of  treaties  of  navi- 
gation, or  in  pursuance  of  the  rule  he  has  pointed 
out,  the  extent  of  soundings,  or  the  reach  of  cannon- 
shot  ;  a  rule,  which  should  have  been  acknowledged 
by  all  the  world,  if  we  must  believe  the  journal  of 
commerce,  of  the  month  of  May,  1759  ;  but  this  as- 
sertion, he  adds,  is  contrary  to  truth  and  fact. 

9.  HuBNER,  in  his  treatise  dc  la  saisie  des  batimens 
neiitres^  torn.  1,  ch.  8,  §  10,  does  not  speak  so  posi- 

•  Sec  also,  Piiftcnclorr,  /?/9  A'a/.  et  Gent.  lib.  -I-,  cap,  .5.  §  9....T. 


200  THE  MARITIME  LAW        Part  I. 

Opinions  of  Hubner,  Vattel,  and  Bpikerslioek. 

tively  on  the  subject.  He  confesses  how  difficult  it 
is  to  fix,  with  precision,  the  extent  of  the  maritime 
jurisdiction  of  the  nation  possessing  the  coasts  ;  he 
thinks  the  limit  ought  to  be,  at  least,  equal  to  the  reach 
ofacannon-shot,  in  order  more  effectually  to  announce 
to  transgressors,  their  infraction  of  this  boundary. 

10.  Vattel,  in  his  work,  du  Droit  des  Gens,  Yiv. 
1,  ch.  23,  §  289,  is  of  the  same  opinion.  He  observes 
that,  at  the  present  day,  all  that  part  of  the  sea  which 
is  within  cannon-shot  of  the  coast,  is  considered  as 
making  part  of  the  territory. 


* 


11.  Bynkershoek,  in  his  dissertation,  de  domi- 
nio  maris,  is  of  opinion,  that  the  dominion  of  the 
adjacent  sea,  extends  as  far  as  possession  can  be 
held  from  the  main  land  ;  and  that  all  that  portion 
of  the  sea  which  he  can  defend  and  protect,  is 
subject  to  him,  even  when  it  is  not  frequented 
by  his  own  navigators. (202)  This  author,  pursu- 
ant to  this  principle,  adds,  that  the  defence  of  ter- 
ritory consists  in  the  force  of  arm.s,  and  that,  as  of 
all  arms,  cannon  can  carry  the  action  of  its  force  to 


*  The  jurisdiction  of  the  District  Courts  of  the  United  States,  in 
cases  of  capture,  extends  to  a  marine  league  from  the  coast.  See 
Laws  of  the  U.  8.  vol.  Ill,  p.  9 1 T. 

(202)  Ch.  2,  §  3.  Existimem  itaque  eo  usque  possessionem  maris 
proximi  videri  porri^endam  quousque  continenti  potest  haberi  subdi- 
tum  :  eo  quippe  mode  quamvls  non  perpetiio  naxi^etiir,  rectc  tamen 
defenditur  et  servatiir  possessiojure  quasita. 


Chap.  II.  OF  EUROPE.  201 

Opinion  of  Suipi,  an  to  tlie  extent  of  the  teiTitorial  sea. 

a  greater  distance,  the  possession  of  the  sea  ought  to 
extend  to  the  reach  of  a  cannon-shot,  fired  from  the 
shore.  (203) 

12.  Sarpi,  in  his  work  entitled, 'Z)d'/ {fo??^//;/^)  del 
jnaj'c  Adriatico,  in  examining  the  opinions  of  lawyers, 
as  to  the  extent  of  that  part  of  the  sea,  which  may  be- 
long to  each  city,  situated  on  the  shore,  gives  his  own 
opinion,  in  the  following  terms.  "  This  extent  is 
*'  equal  to  what  may  be  wanted  by  a  state  for  its 
"  own  use,  without  injury  to  its  neighbours.  Thus, 
"  a  large  maritime  city,  possessing  a  large  extent  of 
"  territory,  from  which  it  draws  its  subsistence,  will 
"  have  but  few  citizens  desirous  of  following  the  oc- 
"  cupation  of  fishing,  and  will  make  but  little  use  of 
*'  the  sea.  On  the  contrary,  a  small  city,  possessing 
"  only  a  very  narrow  territory,  and  deriving  its  sub- 
"  sistence  from  fishing,  will  have  need  of  a  large 
"  extent  of  sea.  This  is  what  lawyers  meant, 
"  when  they  fixed  the  extent  of  the  sovereignty  of 
*'  the  sea,  at  a  hundred  miles  from  the  shore  ;  it  is 
"  using  a  round,  or  determinate  number,  for  an  ar- 
''  bitrary  and  uncertain  number;  as  much  as  to  say, 
"  thatciticshave  the  dominion  of  so  much  of  the  sea, 
"  as  is  necessary  for  their  wants,  without  impairing 
"  the  right  of  others,  though  it  should  extend  to  the 
"  distance  of  one  hundred  miles. "(20 1)    It  appears 


(203)  §  5.  Ibid.  Quare  omnino  videlur  rectius  co  poiestatein 
terra:  extendi,  quousque  tormenia  exploduntur ;  catenus  quippe  cum 
imperare,  turn  possidere  videmiir. 

(20  V)  Ella  i^  lanfo  grancle,  qnaiito  piio  adoperare   in  suo  uso 
senza  injuria  dc'vicini  j  perchc  una  grande  citta  sul  mare,  la  quale 
Vol.  I.  Cc 


202  THE  MARITIME  LAW        Part  I. 

Empire  ofVenice  over  the  Adriatic. — Empire  of  England  over  the  four  seas. 

almost  certain,  that  from  the  time  of  Sarpi,  the  em- 
pire of  the  Adriatic  sea,  belonged  to  Venice,  in 
those  parts  of  it,  at  least,  in  which  she  was  able  to  af- 
ford protection,  and  to  make  her  dominion  respect- 
ed ;  but  it  is  very  doubtful  whether  other  powers  are 
at  all  disposed  to  acknowledge,  at  the  present  day,  this 
absolute  sovereignty,  over  the  whole  extent  of  the 
Adriatic^  as  claimed  by  the  ancient  republic.  Such  a 
pretended  empire  is  respected,  as  long  as  the  nation 
claiming  it,  is  in  a  situation  to  maintain  it  by  force , 
but  it  falls  with  its  power. 

13.  The  naval  strength  of  England  enabled  its 
sovereigns  to  assume  the  empire  of  the  seas,  by 
which  their  island  is  surrounded,  as  far  as  the  op- 
posite shores  of  the  continent  of  Europe,  though 
not  proprietors  of  them.  Selden  pretends,  that  in 
the  time  of  Edward  I.  this  maritime  empire  of  Eng- 
land, was  recognised  by  a  great  part  of  the  nations 
of  Europe  .;(205)  the  republic  of  the  seven  United 

ahbondi  Ji  sili  terrestri,  dove  cavi  il  suo  vitto,  avra  pochi,  die 
vogiiar.o  tare  il  mestiere  di  pescatore,  e  si  valeia  di  poco  mare, 
A!  coiitrario  una  piccola  citta,  con  poco  di  commdita  in  terra,  at- 
tendera  a  cavar  il  vitto  dal  mare,  e  si  valera  di  gran-parte  di  esse  ^ 
e  non  aUrimenci  hanno  volute  intendere  i  guireconsuiti  del  cento 
miglia,  ponendo  un  nuinero  determinate  per  un  incerto  :  cioe  le 
citta  sono  padrone  di  tanta  parte  di  mare,  di  qu^inta  hanne  bisogn© 
di  valersi  senza  ingiuria  d'altri,  se  fossero  ben  cento  miglia.  Sarpi. 
Dom.  del.  mar.Adri.  scrittura.  3. 

(205)  Selden,  Mare  Claumm    lib.  2,  cap.    27,  and    see  ante 
eh.  I ,  article  v.  §  10,  where  this  fact  is  controverted.      [See 
also  the  note  of  the  translator,  ib.  page   128.] 


Chap.  II.  OF  EUROPE.  203 

Dutch  agree  to  salute  tlie  English  flag. — Contrary  conduct  of  France. 

Provinces,  in  some  degree,  acknowledged  it,  by  the 
treaty  of  Breda,  in  1667,  at  least,  as  to  the  honours  of 
the  flag;(206)  but  the  express,  or  tacit  consent  of  all 
the  powers  interested,  is  necessary  to  establish  such  a 
right  on  a  solid  basis ;  and  so  far  is  England  from 
having  any  thing  of  this  kind  to  offer,  that  it  has 
been  proved,  on  the  contrary,  that  this  consent  has 
never  been  given  on  the  part  of  France,  who  would 
not  countenance  such  a  pretension  of  Great  Britain. 
Louis  XIV.  would  not  allow,  that  the  channel  should 
be  called  in  the  same  treaty  of  Breda,  either  the  En- 
glish channel,  or  British  sea. (207.)  The  pride  of  the 
English  must  have  been  humbled  by  this  conduct; 
but  it  was  not  a  time  to  despise  the  marine  of  France. 


(206)  There  is  another  treaty  concluded  between  the  i?ame  pow- 
cr*,  in  1()74-,  in  which,  England,  by  the  ilh  article,  fixes  thelimits, 
within  which  the  salutation  of  her  flag,  by  the  United  Provinces,  is 
required  ;  they  extend,  from  cape  Finisterre,  in  Gallicia,  to  the 
centre  of  Stadland,  or  the  promontory  of  Slat  in  Norway.  Vide 
Dumont,  Corp.  Diplomatique,  torn.  7,  part,   1,  page  263. 

(207)  One  of  the  most  celebrated  of  the  English  historians,  Da^ 
rid  Hume,  confirms  this  maxim,  in  the  first  volume  of  his  work, 
entitled  The  Historic  of  Great  Britain.  "  They  (the  Dutch)  openly 
"  denied,  however,  the  claim  of  dominion  in  the  seas  beyond  the 
"  friths,  bays  and  shores ;  and  it  may  be  questioned,  whether  the 
"  laws  of  nations,  warrant  any  further  pretensions.''* 


•  These  are  the  words  used  by  Hume,  in  mentioning  tlie  attack  made 
hy  tlie  British  fleet,  imdcr  tlie  Earl  of  Northumba-land,  on  tlic  Dutch 
herring-bussw,  in  tlie  yew  16J6.     S«e  his  Historj-,  vol  vi.  ch.  52 T- 


v 


204  THE  MARITIME  LAW       Pari  I. 

The  opinion  of  Galllani,  is  the  most  reasonable. 

Louis  XIV.  made  his  flag  respected  in  every  sea^, 
and,  sometimes,  with  too  much  severity.(208) 

14.  In  this  conflict  of  opposite  opinions,  I  adopt 
that  of  Galliani,  before  hinted  at  by  Hubner  and  Vat- 
tel,  and  more  positively  expressed  by  Bynkershoek. 
It  is  the  only  one  which  appears  to  be  equitable, 
and  adapted  to  the  nature  of  things.  In  my  view, 
it  is  the  most  just,  and  the  only  mean  that  can  serve 
as  a  rule,  to  fix  the  extent  of  the  territorial  sea,  al- 
ways contested,  and  not  yet  decided,  or,  at  least,  not 
established  as  it  ought  to  be,  on  the  basis  of  a  solemn 
treaty  between  maritime  powers.  Until  they  shall 
enter  into  a  public  convention  on  the  subject,  every- 
thing must  depend  on  arbitrary  usage ;  and  the  strong- 
est will  give  law  to  the  weakest. 

15.  The  most  certain  mode  of  fixing  the  extent 
of  the  territorial  sea,  adjacent  to  coasts  not  curved, 
is  to  hmit  it  to  the  space  passed  over  by  a  ball,  shot 
from  a  cannon,  or^at  the  point,  at  which  a  bomb, 
thrown  from  a  "mortar,  placed  on  the  shore,  may 
strike  a  vessel.  This  opinion  appears  conformable 
to  the  principles  of  universal  law,  by  which  all  that 
■J*  — •^— ————— — —«———.— ^—^____^._ 

(208)  The  Spanish  vice-admiral,  Papachin,  having  refused  to 
lower  his  flag,  on  meeting  with  the  French  squadron,  was  forced, 
after  a  bloody  engagement,  to  capitulate.  He,  then,  asked,  what 
they  wanted  of  him;  Tourville,  who  commanded  the  French  ships 
answered,  "  nothing  but  the  salute," — to  which  the  Spaniard  re- 
phed,  "  Was  it  necessary  to  shed  so  much  blood  for  that." — Grif- 
fet.  Journ.  histor,  du  regne  de  Louis  XIV.  page2Sl. 


Chap.  11.  OF  EUROPE.  205 

The  extent  of  tl)e  territorial  sea  should  be  fixed  at  three  miles. 

space  is  considered  as  territory,  over  which  officers  and 
magistrates  can  cause  the  orders  of  their  government 
to  be  executed,{209)  either  by  fear,  or  by  the  force 
confided  to  them.  It  would  be  reasonable,  then,  in 
my  opinion,  without  inquiring  whether  the  nation, 
in  possession  of  the  territory,  has  a  castle,  or  battery, 
erected  in  the  open  sea,  to  determine,  definitively, 
that  the  jurisdiction  of  the  territorial  sea  shall  ex- 
tend no  farther  than  three  miles  from  the  land,  which 
is,  without  dispute,  the  greatest  distance  to  which 
the  force  of  gunpowder  can  carry  a  ball,  or  bomb. 

16.  The  anonymous  author  of  the  poem,  Del  Dl- 
ritio  della  Natura,  lib.  5,  expresses  this  idea  in  the 
following  lines : 

Tanta  s'ainnza  in  mar  qucsto  dominio, 
Quant''  esser  pub  d'antctnurale  e  guardia, 
Findore  pub  da  terra  in  mar  vibrundosi 
Correr  di  cavo  bronzo  accesso  fulmine. 

Far  as  the  sovereign  can  defend  his  sway. 
Extends  his  empire  o'er  the  watVy  way  ; 
The  shot  sent  thundering  to  tiie  liquid  plain^ 
Assigns  the  limits  of  his  just  domain. 


(209)  Digest,  lib.  50,  tit.  16, 1.  239,  §  3,  De  verb,  signif.  Terri- 
ioriitm  est  unixer situs  agrorum  intra  fines  ciijusque  ciritatis  ;  quod 
ab  €0  dictum  quidarn  aiunt,  quod  magistratus  ejus  loci,  infra  eos  fines 
terrendi,  id  est,  submovendij'us  luibet.  Bynkershoek,  De  Dom.  mar. 
cap.  2,  §  3  e<  5,  mentions  an  order  given  by  the  states-general,  in 
1671,  to  the  commanders  of  ships,  to  salute,  as  they  passed  near 
places  belonging  to  foreign  princes,  whenever  they  came  within 
cannon-shot. 


206  THE  MARITIME  LAW        Part  I. 

Rule  adopted  in  several  treaties ; — modified  in  certain  cases. 

Tliis  distance  is  the  one  adopted  by  the  empress  of 
Russia,  in  the  2d  article  of  her  instructions  to  her 
cruisers,  of  the  13th  December,  1787  ;  by  the  grand 
duke  of  Tuscany,  Pierre  Leopold,  in  his  regulation 
of  the  1st  iVugust,  1778,  article  1;  by  the  republic 
of  Genoa,  in  its  manifesto  of  the  1st  July,  1779, 
article  1,  and  by  the  republic  of  Venice,  in  its  mani- 
festo of  the  9th  September,  1779,  art.  9. 

17.  It  is  already  established  among  polished  nations, 
that  in  places  where  the  land,  by  its  curve,  forms  a 
bay  or  a  gulf,  we  must  suppose  a  line  to  be  drawn 
from  one  point  of  the  ihclosing  land  to  the  other,  or 
along  the  small  islands  which  extend  beyond  the 
head-lands  of  the  bay,  and  that  the  whole  of  this  bay, 
or  gulf,  is  to  be  considered  as  territorial  sea  ^  even 
though  the  centre  may  be,  in  some  places,  at  a  great- 
er distance  than  three  miles  from  either  shore. 

18.  Notwithstanding  the  conformity  of  this  doctrine, 
with  the  rules  derived  from  the  domain  of  the  sove- 
reign of  the  main  land,  it  appears  to  me,  that  it  may 
be  admitted  as  a  principle,  that  when  the  question 
arises,  as  to  the  exercise  of  this  right  over  the  territo- 
rial sea,  for  the  purpose  of  establishing  imposts,  or 
restraining  the  freedom  of  passage,  in  regard  to 
foreign  vessels,  and  to  subject  them  to  the  visits  of 
revenue  officers,  that  then,  it  being  a  question  re- 
lating to  the  execution  of  rigid  laws,  it  should  be 
agreed,  for  the  benefit  of  commerce,  to  contract  the 
extent  of  this  sovereignty  j  but  if,  on  the  other  hand. 


Chap.  II.  OF  EUROPE.  207 


Extent  of  territorial  sea,  enlarged  in  favour  of  neutrals. 

a  neutral  power  claims  it,  in  order  to  obtain  an  asy- 
lum against  hostilities,  and  against  the  respective 
cruisers  of  belligerents,  it  should  then  be  regarded  as 
a  beneficial  right,  that  ought  to  be  favoured,  and  to 
which  the  greatest  extension  should  be  given.  Jn 
this  case,  in  which  humanity  calls  for  the  utmost  in- 
dulgence of  the  laws,  in  my  opinion,  the  territorial  sea 
ought  to  be  extended,  not  only  to  three  miles,  as 
above  stated,  but  to  the  distance  of  two  leagues,  as 
has  been  practised  by  some  of  the  powers  of  Europe. 
Tiiis  example  of  natural  equity  and  moderation,  has 
been  taken  tor  the  basis  of  the  treaty  concluded  in 
1740,  between  the  Porte  and  the  king  of  Naples.  It 
is  there  agreed,  art.  16,  that  in  all  places  belonging 
to  either  sovereign,  to  the  distance  at  which  ships 
may  be  discovered,  and  from  which  ships  may  dis- 
cern the  land,*  neither  party  will  permit  vessels  to  be 
pursued  or  molested.  May  the  more  powerful  and 
enlightened  nations  of  Europe,  one  day  adopt,  for 
the  good  of  mankind,  so  excellent  a  maxim,  in  time 
of  war! (2 10) 

*  The  ordinary  extent  of  vision,  must  be  here  understood  as  a 
mean  only  of  fixing  on  some  certain  distance,  as  ten  or  twenty 
miles ;  otherwise,  the  rule,  as  B)  nkershoek  observes,  (Dc  Dom.  mar, 
cap.  1 1)  would  be  too  variable :  For  some  men  can  discern  objects 
at  a  greater  distance  tban  others,  and  much  will  depend  on  Uie  po- 
sition of  the  spectator T. 

(210)  M.  Boucher,  professor  of  commercial  and  maritime  law, 
in  the  academy  of  legislation  at  Paris,  in  adopting  this  opinion,  in 
his  InslitiUes  of  maritime  law,  adds,  very  properly,  at  tlie  end  of 
the  third  chapter ;  "  But,  as  in  such  case,  every  thing  is  to  be 
"  strictly  decided,  in  determining  this  space  by  miles,  as  manv 


J08  THE  MARITIME  LAW        t'art  J. 


Disputes  among  Publicists,  as  to  the  extent  of  tlie  empire  of  the  sea. 


ARTICLE  III. 

Of  the  opinions  of  Publicists,  as  to  the  extent  of  the  em- 
pi  j^e  of  the  Sea. 

§  1 .  THE  question  concerning  the  empire  of  the  sea, 
has  been  warmly  debated,  ever  since  the  modern 
nations  of  Europe  began  to  visit  foreign  seas,  and  to 
make  discoveries  in  every  ocean.  Most  of  the  wri- 
ters who  have  treated  of  this  subject,  have  taken  up 
the  pen,  merely  to  defend  the  interests  of  their  respec- 
tive countries  ;  but  transported  by  their  zeal,  it  has 
become  the  apple  of  discord,  and  has  led  them  to  em- 
brace different  systems.  Thus,  among  those  nations, 
who  appeared  already  possessed  of  the  dominion  of 
the  sea,  their  writers  contended  for  this  empire  with 
the  greatest  animosity. 

2.  Notwithstanding  the  solidity  of  the  principles 
of  universal  reason,  exhibited  in  the  preceding  pages, 
some  celebrated  controversies  arose,  at  the  beginning 
of  the  17th  century,  concerning  the  empire  of  the 
sea.  The  leaders  in  these  disputes,  became  divided 
into  two  opposite  parties,  the  one  maintaining  the 
absolute  liberty  of  the  sea;  the  other  contending  that 
it  might  be  subjected  to  the  dominion  of  a  particular 
nation. 


"  different  calculations  are  given,  as  there  are  different  states, 
"  who,  for  the  most  part,  have  not  the  same  certain  measure.  In 
"  this  case,  nations  ought  to  decide,  by  mutual  consent,  on  the 
"  immunity  of  their  respective  coasts,  according  to  an  invariable 
*'  standard;  and  the  most  exact  one,  is  without  doubt,  that  of  the 
"  quarter  of  the  meridian,  adopted  by  the  French." 


Chap.  11.  OF  EUROPE.  209 

Grotius's  work,  Mare  Libeium. 

3.  At  the  head  of  the  first  party,  appeared  Hugo 
GROTius,orVanGroot.(211)  Republished,  in  1609, 
a  work,  entitled,  Mare  liberuniy  she  dejure,  quod  Ba- 
iaviscompelit  ad  Indiana  commcrcid.  He  had  before 
written  on  the  dominion  of  the  sea,  of  shores,  rivers, 
rocks,  lakes,  and  had  treated  of  some  other  questions 
on  this  subject,  in  the  second  book  of  his  immor- 
tal work,  Dc  Jure  Belli  ac  Paci*.  This  celebra- 
ted publicist,  founded  his  opinion  on  principles 
and  reasons  which,  though  not  generally  adopted  by 
his  commentators,  have  the  merit  of  originality,  and 
are  drawn  from  the  human  heart.  Born  in  a  repub- 
lic, thaj:  sprung,  as  it  were,  from  the  ocean,  from 
which  it  derived  its  greatness,  this  illustrious  writer, 
in  the  work  just  cited,  has  considered  the  subject  in 
the  most  extensive  manner.  \ 

He  has  undertaken  to  prove,  that  neither  Holland, 
nor  any  other  nation,  can  be  excluded  from  the  nav- 
igation of  the  ocean,  and  from  trading  to  the  Indies ; 
notwithstanding  the  claims  of  the  Spaniards  and  Por- 
tuguese, who,  relying  on  the  donations  of  the  popes, 
Alexander  VI.  and  Nicholas  V.  and  on  prescrip- 

(21  1)  Hugo  Grotius,  was  born  at  Delft,  in  Holland,  the  lOth 
April,  1533.  He  went  to  France,  for  the  first  time,  with  Olden- 
Barneveldt,  ambassador  of  the  states-general,  in  159S.  At  the 
age  of  21- years,  he  was  made  advocate-general,  and  in  1713,  pen- 
sioner of  Rotterdam,  and  deputy  from  that  city,  to  the  states  of 
Holland,  and  West-Frie.dand.  His  connexion  with  the  respecta- 
ble Barnevcldt,  excited  bitter  persecutions  against  him.  He  died 
the  28th  August,   I6t5,  at  63  years  of  age. 

Vol.  I.  D  d 


210  THE  MARITIME  LAW        Part  I 


Powerful  arguments  of  Grotius.— John  Selden. 


tion,  and  usage,  were  determined  to  have  the  exclu- 
sive right  of  navigating  the  seas  of  Gu'nt^a,  and  of 
the  Indies.  Grotius  begins,  by  inquiring,  whether 
the  sea  is,  in  its  nature,  susceptible  of  sovereignty, 
and,  transported  by  his  patriotism,  he  maintains  the 
negative.  He  supports  his  opinion,  with  great  ener- 
gy, and  by  very  ingenious  arguments,  and  he  con- 
cludes, that  it  is  contrary  to  every  principle  of  justice 
and  equity,  to  prohibit  commerce,  and  that,  at  all 
times,  in  peace  and  war,  and  during  a  truce,  the 
Dutch  ought  to  enjoy  the  liberty  of  trading  to  the  In- 
dies. Strong  in  the  principles  displayed  by  this  au- 
thor, the  Dutch  asserted  the  freedom  of  navigation, 
and,  that,  consequently,  it  was  lawful  for  them  to 
fish  in  the  English  seas.(212) 

4.  John  Selden,{213)  an  Englishman,  put  him- 
self at  the  head  of  the  opposite  party.  This  learn- 
ed lawyer,  one  of  the  most  judicious  writers  of  the 
17th  century,  was  regarded  by  Grotius  himself,  as  an 

(212)  Grotius  was  followed  by  other  publicists,  who,  success- 
ively wrote,  in  tavour  oF  the  liberty  of  the  sea,  on  the  principles 
he  had  established.  The  following  are  their  names,  and  the  titles 
of  their  works :  Marcus  Zuerius  Boxornii,  Apologia  pro  navigation- 
ibus  HoUaiidorum  adversifi  Fontiim  Hentermn. — Theodori  Graveri 
Anjsterlodamenis,  Disseriatio  de  tuan  natura  libera,  pactis  clause. 
Joan.  Groeningii,  Naviiiatto  libera.  Joaun.  Jsaaci  Pontani,  Dis- 
cussionum  histpricarum  dc  mare  libera  adversus  Joannis  Seldini  mare 
ckusum. 

(213)  John  Selden,  was  born  at  Salvington,  in  the  county  of 
Sussex,  the  16th  December,  1584-,  and  died  at  London,  the  SOih 
November,  1S54-. 


Chap.  I L  OF  EUROPE.  "      211 

Seldcn's  Mare  Clausum. — Partisans  of  Seldcn. 

honour  to  his  country.  He  explained  his  opinions, 
in  1636,  in  his  work,  entitled,  Mare  Clausum^  sen  de 
dominio  maris. [2\^)  The  English  king  was  so  satis- 
fied with  it,  that  by  a  decree  of  his  council,  he  order- 
ed a  copy  of  it  to  be  deposited  in  the  archives  of  the 
tower;  another  copy  in  the  exchequer,  and  a  third  in 
the  court  of  admiralty,  as  a  deposit  of  the  most  au- 
thentic proofs,  and  the  most  convincing  arguments 
in  support  of  the  peculiar  right  of  England  over  the 
British  ocean. 

5.  This  dispute  was  rendered  famous  by  the  ce- 
lebrity of  the  men  who  took  part  in  the  controversy. 
Selden  soon  had  for  his  partisans,  Paul  Sarpi,*  Puf- 
fendorf,f  Wolfius,J,  and  Heineccius.||    This  war  of 

(214)  Moreri  is  strangely  mistaken,  in  saying,  in  his  Dictionary, 
that  Grotius  composed  iiis  work,  merely  to  refute  the  Mure  ClaU' 
sujH  ofSeiden.  The  fact  is  precisely  the  reverse,  as  appears  from 
the  priority  of  the  work  of  Grotius,  in  which  not  a  word  is  said  of 
Selden,  while  the  latter,  in  his  work,  makes  a  direct  attack  on 
Grotius. 

*  Peter  Paul  Sarpi,  was  born  at  Venice,  in  1.552,  and  died  in 
1653.  He  was  a  man  ol  genius,  and  possessed  various  and  exten- 
sive learning.  His  works  were  printed  at  Venice,  in  1677,  in  six 
vols.  12mo T. 

t  Samuel  Puffendorf,  was  born  1631,  at  Fletch,  a  small  town 
in  the  Margravate  of  Misnia,  in  the  Electorate  of  Saxony.  He 
was  governor  to  the  son  of  the  Swedish  ambassador,  at  Copen- 
hagen, and  when  the  ^^'ar  broke  out  between  Denmark  and  Swe- 
den, he  was  detained  a  prisoner  for  eight  months,  during  which 
time,  he  studied  Grotius  and  Hobbes.     Charles  XI,  kingofSwe- 


212  THE  MARITIME  LAAV        Part  /. 

Arguments  of  Selden. 

pens,  soon  gave  place  to  that  of  arms.  Selden,  whom 
Grotius  called  Thalassocratkus,  or  ruler  of  the  sea, 
maintained,  that  the  empire  of  the  British  seas,  be- 
longed to  the  crown  of  England.  His  arguments  are 
drawn  from  the  holy  scriptures,  from  the  history  of 
the  most  illustrious  nations  who  had  held  the  empire 
of  the  sea,  from  some  parts  of  the  sea  being  already, 
in  fact,  occupied,  from  prescription,  from  the  com- 
mon law  of  England,  and  its  ancient  titles,  from 
treaties,  in  which  other  powers  had  acknowledged 
this  dominion,  from  possession,  and  the  uninterrupted 
exercise  of  her  right,  and,  finally,  from  the  example 
of  other  governments. 

6.  These  arguments  are  contained  in  two  books. 
In  the  first,  he  endeavours  to  prove,  that  the  sea  is 
not,  by  the  law  of  nature  and  nations,  common  to  all 

den,  appointed  him  professor  of  law,  and  historiographer,  and 
conferred  on  him  the  title  of  Baron.  He  died  at  Berlin,  in  1694'. 
The  best  edition  of  his  great  work,  on  the  lav)  of  nature,  and  na- 
tions, is  that  of  Barbeyrac,  with  his  learned  preface  and  notes, 
which  was  translated  into  English  by  Basil  Kennet,  £th  edition, 
folio,  London,  1749 T. 

t  John  Wolfius,  the  son  of  a  brewer,  was  born  in  1679,  at 
Breslau,  the  chief  city  of  Silesia.  He  was  appointed  professor  of 
law,  in  the  celebrated  university  of  Halle.  His  works  are  very 
voluminous;  but  possess  great  merit,  though  many  of  them  are 
written  in  barbarous  latin.     He  died  in  1754 T. 

II  John  Gotleib  Heincccius,  was  born  iii  1618,  at  Eisenberg, 
in  the  Electorate  of  Treves.  He  was  professor  of  law,  in  the  uni- 
versity of  Halle.  His  works  were  printed  at  Geneva,  in  \lAi\, 
in  8  vols.  410.  and  are  deservedly  held  in  high  eslimati«n T. 


Chap.  11.  OF  EUROPE.  213 

Respective  merits  of  Sclden  and  Grotitis. 

mankind  ;  but,  on  the  contrary,  is  susceptible  of  be- 
coming the  domain  and  property  of  a  particular  na- 
tion ;  in  the  second,  that  the  king  of  England  is  ab- 
solute master  of  the  British  ocean,  and  that,  conse- 
quently, the  English  have  an  exclusive  property  in 
the  fisheries  in  that  sea.(215) 

7.  These  two  celebrated  publicists,  impelled  by 
the  interests  of  their  respective  countries,  and  by  the 
glory  of  being  leaders  of  literary  factions,  so  entan- 
gled the  subject,  by  their  passionate  opinions,  that 
instead  of  elucidating  and  deciding  the  question, 
they  involved  it,  by  their  useless  learning,  and  equi- 
vocal arguments,  in  greater  obscurity.  Posterity  has 
decided,  that  Grotius  maintained  a  good  cause  badly, 
and  that  Selden  defended  a  very  bad  cause  well.* 


(215)  Seidell  had,  besides,  for  his  partisans,  the  following  wri- 
ters :  Conringii,  Dissertatio  de  imperio  maris.  A  dissertation  by* 
the  same  author,  or  according  to  some,  hy  John  Wtrlhnsius,  Demar- 
itimis  commerciis.  Cunr  :  Sam.  Schurzfleischii,  Dissert,  maris 
servilus.  Joannis  Strauchii,  Dissert :  de  imperio  inaris.  Christ. 
Roehrensee,  De  jure  circa  aqiuas  mujegtatico.  Thomce  Rivii,  Ilis- 
ioria  navalis  vxtdia.  Seraphin  de  Fretas,  a  Portuguese,  followed 
the  steps  of  Selden,  and  published  against  Grotius,  a  work  entitled, 
De  iusto  imperio  Liisitanorum  Asiuiico  adversus  Grotii  Mare  Lib- 
ermn. 

■*•  The  learned  and  judicious  Bynkershoek,  does  justice  to  the 
profound  erudition  ot  Selden,  but  denies  the  force  of  his  reasoning. 
"  Non  est,  cur  Scldeno  invidiainus  splendida  tcsiiinonia,  quibus  Hie 
"  adtuendum  Centis  sua'  i^lorium  lon^e  tatcque  .luperbit  ;  apparatum 
"  erudilionis  agnosco  in^eniem,  vim  probandi  nonaque."  De  Dora- 
inio  rcaris  dissertatio,  cap.  v T. 


214  THE  MARITIME  LAW      Parti. 

Works  of  Pontanus  and  Pacius. 

8.  Isaac  Pontanus,*  historian  to  the  king  of  Den- 
mark, in  his  Historical  Discussions,  is  opposed,  in 
many  respects,  to  the  opinion  of  Selden  :  he  inquired, 
what  is  meant  by  a  sea,  free,  or  not  free,  open  or  in- 
closed, and  how  it  ought  to  be  considered  in  these 
different  points  of  view  ;  but  he  comes  to  no  decision 
on  the  principal  matter  in  controversy. 

9.  Julius  pACius,f  a  knight  of  St.  Mark,  a  phi- 
losopher, and  celebrated  vicentine  lawyer,  wrote  on 
the  liberty  of  the  Adriatic  sea,  during  the  dispute 
between  the  king  of  Spain  and  the  republic  of  Ve- 
nice. After  laying  down  some  general  principles, 
he  reduces  the  question  to  three  points :  1 .  Does  the 
domain  and  jurisdiction  of  the  Adriatic  sea,  belong 
to  the  republic  of  Venice  ?  2.  By  virtue  of  what  right 
does  it  belong  to  her  ?  3.  What  are  the  effects  of  this 
sovereignty  ?  He  determines  the  first  point,  as  might 

•well  be  expected,  in  favour  of  the  Venetians,  on  the 
authority  of  learned  doctors;  the  second,  by  saying, 
that  this  sovereignty  is  founded  on  possession,  sup- 
ported by  prescription  ;  he  explains  the  effects  of  this 
sovereignty,  by  shewing  that  it  consists  in  jurisdic- 
tion, in  the  imposition  of  duties,  the  defence  of  navi- 


*  Isaac  Pontanus,  was  born  at  Hserlem,  in  the  province  of  Guel- 
ders,  and  died  in  16+0,  at  the  age  ot  69.  He  published  a  great 
number  of  learned  works T. 

-}•  Julius  Pacius,  born  in  1550,  at  Vicenza,  in  Italy,  was  pro- 
fessor of  law,  at  Padua.  He  died  in  1635,  at  the  advanced  age  of 
85  years.  His  works  on  law  are  numerous,  and  considerably  es- 
teemed  T. 


Chap.  11.  OF  EUROPE.  215 


Venetian  advocates — James  Godcfioi. 


gation,  the  protection  of  its  subjects,  and  in  the  ex- 
pulsion of  pirates.  He  answered  the  objections 
which  were  made  against  his  opinions,  on  behalf  of 
his  catholic  majesty,  in  an  anonymous  discourse  on 
the  freedom  of  the  Adriatic  sea,  but  not  in  such  a 
manner,  as  to  induce  him  to  suppose  that  he  should 
remain  without  a  reply.(216) 

10.  James  Godefroi,*  desirous  of  elucidating 
the  9th  law  of  the  digest.  Ad  legem  Bhodiam  dejac- 
lUy  lib.  14,  tit.  2.  entered  into  some  considerations  on 
the  sovereignty  of  the  sea.    His  chief  purpose  is  to 

(216)  The  authors,  who  wrote  in  favour  of  the  republic  of  Ven- 
ice, were,  Cornelius  Frangipan,  author  of  a  work,  entitled,  Alk' 
^azion  injure  per  Ui  xilloria  navale  contro  Frederico  I,  imperuiore, 
ex  alto  del  Papa  Alessandro  III.  per  il  dominio  delta  Repuhlica  Feneta 
del  suo  gu/fn,  contra  alcune  Scritture  de^Nupolitani.  Francis  de  In- 
genuis,  author  of  a  letter,  entitled,  Dejurisdiciione  reipublical'en- 
etcE  in  mare  Adriaticum  scripta  ad  LiberiuinVicentimn  Batavum ,  con- 
tra Jo.  Bapiistam.  Valentolam  Ilispanuin,  et  iMurientium  Motia- 
um  romanum,  against  which,  a  reply  appeared  in  the  work  of 
Joh  :  August  :  de  Berger,  entitled,  Succinda  coimnentutio  de  iin- 
perio  maris  Adriatici,  Ccrsari,  qua  regi  Dahnatarion,  ac  principi 
Istria-,  lit  et  regi  Neapoleos  alque  Sicilicc  propria.  Sarpi,  on  his 
side,  published  two  works  of  very  great  boKiness,  but  with  little 
foundation  in  reason:  The  titles  of  ti)em  are,  Do/ninio  del  mare  Ad- 
rialico  delta  sercn  repubblica  di  Veneua  descritto  da  Fr  :  Paolo  Sar- 
pi dell'ordine  de  Seni.  Teologa.  Tite  other,  Dominio  del  mare 
ndriatico  e  sue  ragioid  per  it  Jus  belli  delta  sereiiissitna  repubblica  dl 
Venezia  del  padre  Paolo  Sarpi. 

*  James  Godcfroi,  a  native  of  Geneva,  was  a  man  of  profound 
and  accurate  eruditioji.  He  died  in  1652,  at  th.e  age  of  sixty-two 
years T. 


216  THE  MARITIME  LAW        Parti. 

Disputes  concerning  maritime  rights,  between  Denmark  and  Poland. 

discuss  the  rescript  of  the  emperor  Antoninus,  con- 
tained in  that  law  ;  but  he  does  not  decide  the  ques- 
tion, which  he  handles  cursorily,  and  in  a  scholastic 
manner. 

1 1.  The  Baltic  sea  gave  birth  to  controversies  of 
the  same  nature,  between  the  powers  of  the  north. 
The  king  of  Poland,  in  1637,  wished  to  subject  the 
inhabitants  of  Dantzic  to  a  new  tax,  and  appointed 
a  collector,  and  some  vessels,  for  that  purpose.  The 
king  of  Denmark,  who  thought  his  rights  infringed, 
seized  the  vessels,  which  were  afterwards  restored  ; 
but,  on  condition,  that  it  should  not,  in  any  manner, 
derogate  from  his  sovereignty,  or  the  prerogative  of 
his  kingdom.  Poland,  not  willing  to  abandon  her 
enterprise,  made  every  effort  to  levy  a  new  impost. 
This  claim  gave  rise  to  the  question,  whether  such  a 
thing  could  lawfully  be  done.  An  anonymous  Po- 
lish writer  maintained  the  affirmative,  in  a  discourse 
addressed  to  a  friend.  The  contrary  opinion  was 
held  by  an  anonymous  Danish  writer,  in  a  small  vo- 
lume, entitled.  Mare  Baliicum.  Another  Pole,  per- 
haps the  same  anonymous  wTiter  just  mentioned, 
published  the  Antimare  Balticum ;  each  party  exert- 
ed himself  to  the  utmost  of  his  ability,  in  defence  of 
the  rights  of  his  sovereign.  Though  the  arguments 
of  the  Dane  appear  more  solid  than  those  of  the  Po- 
lish writer,  vet  both  of  them  are  susceptible  of  refu- 
tation. 


Chap,  II,  OF  EUROPE.  217 


Ferdinand  II.  confers  on  Wallenstein,  the  title  of  general  of  tlie  Baltic  &c. 

12.  The  emperor,  Ferdinand  II.  in  granting  to 
duke  Wallenstein,*  the  dutchy  of  Mecklenberg,  con- 
ferred on  him  also,  the  title  of  general  of  the  Baltic 
sea,  and  the  Ocean.  The  king  of  Denmark  com- 
plained of  this  in  1628;  and  the  king  of  Sweden 
went  so  far  as  to  say,  that  the  protection  of  that  sea 
belonged  to  him  alone.  Such  was  the  origin  of  the 
war  in  Germany,  by  Gustavus  Adolphus.-|-  He  de- 

*  Tiiis  extraordinary  character,  was  a  private  gentleman  of 
Bohemia,  devoted  to  the  interestsof  the  house  of  Austria,  and  for 
his  successful  services  in  the  wars  against  the  Turks,  Venetians, 
and  Bohemians,  the  emperor  created  him  count  of  Fridlan,  and, 
afterwards,  duke  of  Mecklenberg,  He  conferred  on  him  immense 
estates,  which  had  been  confiscated  in  Bohemia,  by  which  he 
was  enabled  to  raise,  and  maintain,  an  army  of  50,000  men,  at  his 
own  expense.  In  splendour,  and  sumptuousness  of  living,  he  sur- 
passed all  the  princes  and  nobles  of  the  empire.  He  was  a  mili- 
tary adventurer,  ambitious,  haughty  and  capricious T. 

f  From  the  manner  in  which  this  is  expressed  by  our  author, 
the  reader  would  naturally  conclude,  that  the  vanity  of  Wallenstein 
alone,  provoked  Gustavus  to  a  declaration  of  hostilities,  and  that 
the  sole  motive  of  the  king  of  Sweden,  for  entering  into  'his  war, 
was  to  strip  the  imperial  general  of  an  empty  title  ;  a  motive  un- 
worthy of  that  great  monarch.  Many  other,  and  more  powerful 
inducements  to  war,  already  existed  in  the  mind  of  Gustavus.  He 
had  listened,  with  compassionate  attention,  to  the  complaints  of 
the  protestants  against  the  emperor  ;  he  had  promised  them  his 
protection  and  aid,  and  offered  his  kingdom  as  an  asylum  to  the 
persecuted.  The  rapid  successes  of  the  imperial  generals  against 
the  protestant  princes ;  the  situation  of  the  Hanseatic,  and  other 
Baltic  towns,  menaced  by  the  daring  Wallenstein,  were  enough  to 
alarm  Sweden  and  Denmark  for  the  safety  and  independence  of 
their  own  dominions,  and  to  induce  them  to  think  of  checking  the  fur- 

VoL.  I.  Ee 


218  THE  MARITIME  LAW        Parti, 


War  between  the  king  of  Sweden  and  the  emperor. — Bynkershoek. 

clared  hostilities  against  the  emperor,  in  order  to 
compel  him  to  suppress  the  title  of  general  of  the 
sea,  which  he  supposed  injurious  to  him.  Balthazar 
Henkel  maintained  the  justice  of  this  war,  in  a  work 
entitled,  De  belli  pretextioiie  Gustavi  Adolphi.  The 
author  justifies  the  declaration  of  war,  by  the  king  of 
Sweden,  and  enters  into  an  examination  of  the  sub- 
ject, without  forgetting  any  thing  which  may  favour 
his  opinion.  If  such  a  dispute  were  to  be  decided, 
by  the  pieces  produced  on  both  sides,  the  decision 
would  certainly  be  in  favour  of  the  king  of  Sweden, 
for  the  arguments  aliedged  by  his  defenders,  produce 
complete  conviction,  and  entirely  refute  the  reasons 
offered  by  the  advocates  of  the  emperor. 

13.  Bynkershoek  has  left  us  a  very  learned  disser- 
tation on  the  empire  of  the  sea.  It  is  divided  into 
nine  chapters,  and  is  worthy  of  the  reputation  of  the 
author.  He  maintains,  however,  a  singular  opinion, 
defending,  at  the  same.time,  both  the  liberty  and  the 
sovereignty  of  the  sea.  He  affirms  that  the  sea  may 
be  made  subject  to  dominion  j  but  he  asserts,  that 

therprogressoflliat  victoriousgeneral.Tlieambassadorssenf  by  Gus- 
tavus  to  reprtfsent  him  in  the  congress  at  Lubeck,  were  refused  ad- 
mittarce  with  the  most  insulting  contempt,  through  the  influence, 
as  he  had  reason  to  believe,  of  the  emperor  and  Wallenstein.  All 
these  provocations,  combined  witli  his  attachment  to  the  protestant 
Cause,  and  his  desire  to  repress  the  alarming  ambition  of  Ferdi- 
nand, were,  to  such  a  character  as  that  of  Gustavus,  sufficient  mo- 
tives to  commence  open  hostilities,  and  to  carry  the  terror  of  hi;! 
arms  into  the  heart  of  the  German  empire T. 


Chap.  II.  OF  EUROPE.  219 


Dissertation  of  B}  nkerskoek. — Gi-iuiswinckel's  work. 


there  is  not  an  instance,  at  the  present  day,  of  its  be- 
ing subject  to  any  sovereign,  where  the  surrounding 
territory  did  not  at  the  same  time,  belong  to  him.  It 
appears,  that  Bynkershoek  borrowed  this  opinion 
from  George  Paul  Roctenbeck,  who  pubUshed,  be- 
fore him,  a  work,  entitled,  Dissertatio,  an  mare  do- 
ininiiy  siue  imperii  sit  capax. 

14.  Theodore  Granswinckel*  wrote  in  favour  of 
the  liberty  of  the  sea,  against  Peter  Baptist  Burgo, 
who,  by  strange  principles,  and  feeble  arguments, 
maintained  the  sovereignty  of  the  Ligurian  sea,  in  fa- 
vour of  the  republic  of  Genoa,  in  a  work  entitled, 
Dc  Dominio  Sej-ensis.  Gcmicnsis  RcipiibliccC  in  Mare 
Liguslico,  lib.  duo.  The  former  author  replied  to 
him  in  a  work  entitled,  Vindicia  adversus  Fetrum 
Baptislum  Burgiun  Ligustici  marix  dominii  asserto- 
rem ;  he  published,  also,  a  short  time  aiterwards,  a 
second  work,  under  the  title  of  Vindicatio  maris  li- 
beri  adversus  Guill.  IVeLwoodum  Brilannici  maris  do- 
minii assertoreni.  These  two  performances  are  writ- 
ten with  great  animosity.  They  take  from  the  Geno- 
ese, every  hope  of  reclaiming  their  pretended  empire 
over  a  great  part  of  the  Mediterranean  sea,  and  trom 
the  English,  that  of  the  British  ocean,  so  vainly  arro- 
gated by  them. 

*  Theodore  Granswinckel,  born  at  Delft,  in  Holland,  was  ihc 
kinsman  and  intimate  friend  of  Grotius.  He  died  in  1666,  at  tlie 
age  of  60  years.,. ...T. 


220  THE  MARITIME  LAW        Parti 


Dissertation  De  dominio  maris,  by  John  Straucliius. 

15.  John  Strauchius,  in  a  dissertation,  entitled 
De  imperio  maris ^  has  attempted,  in  the  first  chap-- 
ter,  to  demonstrate,  that  there  is  nothing  in  the  na- 
ture of  the  sea,  repugnant  to  the  idea  of  property  ^ 
and  in  the  second  chapter,  he  maintains  that  it  is  mo- 
rally susceptible  of  perfect  dominion.  In  the  third 
chapter,  he  describes  the  empire  of  the  sea,  as  assum- 
ed by  the  Romans  j  and  in  the  fourth,  the  manner  of 
acquiring  this  sovereignty,  by  imitating  the  division  of 
the  world  made  by  Noah,  that  is,  by  the  possession  of 
the  first  occupant,  by  accession,  and  by  prescription. 
In  the  fifth  chapter,  he  examines  the  means  of  preserv- 
ing this  sovereignty,  as  by  naval  armaments  and  tri- 
bunals. He  treats,  in  the  sixth  chapter,  of  impera- 
tive acts,  such  as  lowering  the  flags  by  foreign  ships, 
in  form  of  obeisance,  of  impositions,  of  impressments, 
of  the  right  of  anchorage  in  ports.  He  pursues  the 
same  subject  in  the  seventh  chapter,  where  he  speaks 
of  the  imposition  of  taxes  and  duties.  In  the  eighth 
chapter,  among  the  incidents  of  the  sovereignty  of  the 
sea,  he  ranks,  the  power  of  prohibiting  a  passage  to 
strange  vessels ;  and,  in  the  ninth  chapter,  he  treats 
of  the  punishment  of  crimes,  the  pursuit  of  pirates, 
and  the  seizure  of  contraband  goods.  This  author, 
who  has  blindly  copied  the  doctrine  of  Selden,  finish- 
ed his  dissertation,  without  perceiving  that  the  rights, 
before  discussed,  belonging  to  all  the  powers  of  the 
world,  over  their  respective  territorial  seas,  though 
universally  allowed  to  be  legitimate,  are  not  suffi- 
cient to  establish  dominion  and  property  in  regard  to 
the  high  sea.  So  that  it  may  be  said,  he  has  laboured 


Chap.  11.  OF  EUROPE.  221 

Galliani's  work  on  the  rights  of  neutrals. 

in  vain,  to  determine  a  matter  not  brought  into  ques- 
tion. On  the  other  side,  George  James  Leicher- 
Ri,  his  contemporary,  has  published  a  work,  equally 
destitute  of  utility,  entitled  Commentatio  de  jure  ma- 
ritimo. 

16.  The  Abbe  Galliani,  a  Neapolitan,  is  the 
last  of  the  writers  on  public  law,  who  has  treated  of 
this  subject;  and  he  is  the  first,  if  I  am  not  mistaken, 
to  follow  those  principles  of  natural  law,  already  laid 
down,  in  the  preceding  articles,  I.  and  II.  of  this 
work,  and  to  deduce  from  them,  an  inference  which 
ought  to  be  universally  adopted. 

17.  This  celebrated  author,  in  his  work,  entitled 
Dei  Doveri  de'  Princlpi  de  Neutrally  lib.  1,  ch.  10,  § 
1.  supposes  five  essential  points  of  difference,  be- 
tween journeys  by  land,  and  voyages  by  sea.  Rea- 
soning on  these  differences,  he  thence  concludes, 
with  great  clearness,  that  nations  can  occupy,  and 
become  the  proprietors  of  the  different  regions  of 
the  earth,  since  it  is  in  their  power  to  secure  this 
possession  by  defending  the  passes  of  mountains, 
and  the  mouths  of  rivers;  the  rest  of  the  country, 
being  naturally  defended  by  rocks,  valleys,  rivers, 
forests,  morasses,  the  borders  of  the  ocean,  and  de- 
serts. But  not  being  able  to  surround,  nor  strictly 
to  defend  the  open  sea,  since  no  solid  w  ork  can  be 
erected  on  that  element,  it  is  impossible  to  guard 
it,  and  consequently  it  is  by  nature  incapable  of  be- 
mg  occupied.  From  opposite  reasons,  he  concludes. 


222  THE  MARITIME  LAW         Parti. 


Arguments  of  Galliani. 


that  when  the  shores  of  a  sea  belong  to  a  single  na- 
tion, and  inclose  an  expanse  of  water,  large  or  bmalJ, 
which  has  no  communication  with  the  rest  of  the 
ocean,  or  communicates  only  by  a  narrow  strait, 
this  part  of  the  sea  may  be  lawfully  possessed,  since 
it  may  be  occupied,  inclosed,  and  defended.  .But 
when  the  parts  of  the  shore,  which  encompass  this 
sea,  thus  circumscribed,  belong  to  different  inde- 
pendent nations,  it  is  obvious  that  there  is  no  reason, 
nor  pretext  for  the  nation,  who  possesses  the  land 
forming  the  straits,  or  out-let  of  this  sea,  to  refuse, 
a  passage,  and  free  navigation  within,  to  unarmed 
vessels;  because,  as  this  nation  receives  no  damage, 
loss  or  inconvenience,  h-om  the  passage  of  vessels, 
it  cannot  reasonably  refuse  to  others  an  enjoyment 
advantageous  to  them,  and  in  no  degree  injurious 
to  those  who  may  wish  to  prevent  it.  (208)  It  ap- 
pears, also,  that  the  possessor  of  the  shores,  which 
form  the  mouth  of  the  gulf,  or  inclosed  sea,  may, 
justly,  insist  on  the  right  of  visiting  the  ships  tl^at 
pass  the  strait;  and,  as  a  matter  of  wise  precaution, 
may  prohibit  the  passage  of  armed  vessels,  when, 
from  their  number,  and  other  circumstances,  there 
is  room  for  distrust,  or  just  ground  of  suspicion. 


(203)  llbtd  certum  est  etiam  qui  mare  occnpareril  navigationem 
i7npedi>-e  non  posse  iiier mem  et  innoxiain.  Grotius,  Dejwe  belli  ac 
pads,  lib.  2,  cap.  3,§  12. 


CHAPTER  III. 

OF  THE  EFFECTS  OF  THE  EMPIRE  OF 
THE  SEA. 


ART.  I. 

Of  Property  in  territorial  Seas,  a?id  of  tJieir  Depen- 
dencies 


§  1.  When  a  nation  takes  possession  of  an  unoc- 
cupied country,  it  may  justly  be  considered  as  having 
acquired,  besides  the  property  of  the  soil,  the  domin- 
ion and  sovereignly.  Being  thus  free  and  independ- 
ent, its  only  aim  will  be  to  prevent  every  other  na- 
tion from  assuming  the  right  of  command,  or  exer- 
cising any  acts  of  sovereignty  whatever,  within  the 
space  over  which  its  empire  extends,  and  which 
forms  its  territorial  jurisdiction.* 

2.  A  nation  that  occupies  a  part  of  the  adjacent 
3ea,  has  the  sovereignty  as  well  as  the  dominion  of 
it,  and  enjoys  there  all  those  rights  which  appertain 


*  Vattel,  lib.  1,  ch.  IS T.. 


224  THE  MARITIME  LAW        Parti, 

Property  in  the  sea  adjacent  to  the  land. 

to  it  on  land,  and  which  are  given  to  it  by  the  laws 
of  the  state. (2 17) 

3.  It  follows  from  this  fundamental  principle, 
that  the  empire  of  the  sea,  according  to  the  system 
established  in  the  preceding  chapter,  is  not  to  be  re- 
garded as  a  vain  jurisdictional  right,  or  as  a  mere  ho- 
norary title,  according  to  the  exaggerated  expression 
of  Grotius  ;(218)  but  has  the  real  effects  of  every 
other  kind  of  property.  It  differs  in  nothing  from  that 
of  the  land,  and,  consequently,  gives  us  the  entire 
disposal  of  the  thing  possessed,  and  the  right  of  sell- 
ing, exchanging,  granting,  and  alienating  it  at  pleas- 
ure ;(2 19)*  provided,  that  the  possessor  transfers  no 

(217)  Quoniam  partes  maris  occupati  ad  territorium  illius  gentis 
pertinent,  quce  eas  occupavit , quale  jus  Rector  civitatis  in  suo  territorio 
habet,  taleetiam  ipsi  competit  in  parti  bus  maris  occupatis;  et  per  con- 
sequens  qui  iis  versantur,  iisdem  legihus  suhsunt,  quam  qui  in  terris 
habitant aut  commoratitur,etiam peregrini admissi.  Wo\{]as, Jus.Nat. 

et  Gen.  cap.  5 See  Grotius,  Dejure  belli  ac  pads,  lib.  2,  cap.  3, 

§8  and  13. 

(218)  Grotius,  De  jur.  bel.  ac pac.   lib.  2,  cap.  3,  n.   \%. 

(219)  Ferret,  rfe  re na»a/z,  \\i.denautican.\,et2^.  Perigrin.  Dejure 
jisci,\ih.  8,  n.  9  et  sequ.  Binkershoek,  de  Dom.  Mar.  cap.  4.  Unum 
eundemque  principem  maris  renuncio  et  vere  dominium;  simulque  et 
kanc  potestatem  tribuo,  qualem  optimu7n  maximam  jnrisconsuUi  so- 
lent  adscriberi  dominio.  Itaque  ut  quisque  rei  sine  liber  est  moderator, 
et  arbiter,  ita  dojninus  maris  poterit  id  ipsum  venderc,  permuiare 
donare,  in  solutum  dare,  aliisque  modis  ex  animi  sententia  de  eo  sta" 
tuere. 

*  See  also  Barbeyrac's  note  on  Grotius,  lib.  2,  ch,  3,  §  13,  who 
agrees  with  Bynkershoek,  in  rejecting  the  distinction  of  Grotius, 
between  jurisdiction  and  properly,  in  regard  to  the  sea T. 


I 


CliaiK  III.  OF  EUROPE.  225 

Propert}-  in  roads,  bays,  ports,  straits,  &c. 

greater  right  than  belongs  to  him  ;  that  is  to  say,  that 
those  who  derive  title  from  him,  shall  preserve  their 
property  no  longer  than  while  they  continue  in  pos- 
session.(220.) 

4.  The  occupation  of  a  portion  of  the  sea,  draws 
after  it  that  of  the  coasts,  roads,  ports,  and  adjacent 
islands.  But  if  different  nations  possess  lands  along 
the  shore  of  a  strait,  or  gulf,  the  empire  of  each  must 
extend  to  the  middle  of  the  water,  at  an  equal  dis- 
tance from  every  part  of  their  respective  and  oppo- 
site shores  ;  unless  they  have  agreed  to  enjoy  that 
space  of  sea,  in  common,  and  undivided,  and,  by 
their  united  power,  to  protect  their  mutual  rights 
against  strangers.(221) 

5.  The  same  principle  may  be  applied,  with  great- 
er force,  to  the  dominion  of  bays,  straits,  and  har- 
bours, as  more  susceptible  of  occupancy,  and  as  in- 
volving more  the  security  of  a  country.  Besides,  bays, 
and  straits  of  small  extent  only,  are  here  intended, 
and  not  those  large  arms  of  the  sea,  which  are  often 
denominated  such ;  as  Hudson's  Bay,  and  the  Straits 
of  Magellan,  over  the  whole  of  which,  the  right  of 
empire,  and  much  less,  the  right  of  property,  cannot 
be  claimed. 

(220)  Grotiu?, /oc.  ell.  §  12.     Gronoviiis,  in  coinmcn. 

(221)  PufTendorf  dcjnrcnat.  ct  gent.  lib.  4,  cli.  5,  §  S.    Selden, 
Mare  Clausum,  lib.  2,  cap.  20. 

Vol.  I.  F  I 


226  THE  MARITIME  LAW        Fart  L 

Extravagant  claims  to  the  British  seas,  advanced  by  Selden. 

6.  The  celebrated  Selden,  in  spite  of  these  obvious 
principles,  concludes  his  book  on  the  empire  of  the 
sea,  by  the  bold  assertion,  that  the  very  coasts  and 
harbours  of  the  neighbouring  states,  situated  on  the 
other  side  of  the  British  seas,  are  the  limits  of  the 
maritime  empire  of  the  English  to  the  south  and  to 
the  east.  But  more  modern,  and  more  candid  wn- 
ters,  have  abandoned  these  extravagant  and  antiqua- 
ted notions.  In  the  disputes  that  arose,  in  1636,  be- 
tween Charles  I.  king  of  England,  and  the  states- 
general  of  the  United  Provinces,  relative  to  the  her- 
ring fishery,  in  the  British  seas,  the  latter  denied 
this  pretended  empire  of  the  English,  w^hich,  they 
observed,  could  exist  only  in  their  own  bays  and 
gulfs,  or  on  their  own  shores.  The  celebrated  phi- 
losopher and  historian,  David  Hume,  agrees  with 
them  in  opinion  :  "  It  may  be  questioned,"  says  he, 
*'  whether  the  laws  of  nations  warrant  any  further 
"  pretensions."(222) 


ARTICLE  II. 

Of  Straits,  and  the  Duties  imposed  on  their  Passage. 

§  1.  WHEN  maritime  straits  are  so  situated,  as  to 
form  a  necessary  communication  between  two  seas, 
the  naviiration  of  which  is  common  to  all,  or  to  most 
nations,  the  power  in  possession  of  the  straits,  can- 

(222)  History  of  England,  vol.  6,  p.  306,  Svo.  ed.  1791. 


Chap.  III.  OF  EUROPE.  227 


Rjglit  of  passing  sti-aits  ; — Duties  may  be  imposed  on  it. 


not  refuse  a  passage  to  others;  provided  the  permis- 
sion is  used  with  moderation,  and  is  attended  with 
no  injury.  By  denying  a  passage,  without  just  cause, 
the  first  nation  would  deprive  others  of  an  advan- 
tage, derived  from  nature ;  since  the  right  of  saihng 
from  one  sea  to  another  is  a  part  of  the  common 
possession  of  that  element,  which  belongs  to  man- 
kind, in  its  full  extent. 

2.  The  care  of  his  own  safety  and  preservation, 
alone  authorises  the  sovereign  of  a  strait  to  make 
use  of  particular  precautions,  or  to  require  the  ob- 
servance of  certain  formalities,  authorised  by  the 
usage  of  different  nations.  He  may,  tor  this  reason, 
impose  moderate  duties  on  the  passage  of  ships, 
either  on  account  of  the  inconvenience  which  they 
occasion,  by  obliging  him  to  guard  his  territory,  or 
for  the  sake  of  the  protection  afforded  against  ene- 
mies and  pirates,  and  for  the  expenses  incurred  in 
maintaining  light-houses,  pilots,  and  signals,  for  their 
security. 

3.  In  Exodus,  and  the  prophecy  of  Isaiah,  men- 
tion is  made  of  beacons,  or  signals,  established  for  the 
safety  and  convenience  of  navigation,  and  thanks  are 
given  to  God  as  the  author  of  this  good,  and  of  all 
others  which  men  enjoy. (223)  This  custom  according 
to  Apuleius,  is  very  ancient.  It  is  supposed  to  have 
been  practised  by  the  Arabians,  and  other  nations 

(223)  Exodus,  ch.  13,  v.  21,  and  last  chapter.  Isaiali,  ch.  4,  v.  .5. 


228  THE  MARITIME  LAW        Part  I. 


Duties  for  the  support  of  light-houses,  as  lawful  as  tolls  on  land. 


of  Asia,  in  the  time  of  the  expedition  of  Alexander 
the  Great. (224)  It  existed,  also,  among  the  Romans, 
accv)rding  to  the  testimony  of  Li\  y,  and  other  histo- 
rians.(223)  It  was  by  aid  o'  these  signals,  that  Beli- 
sarius,  general  of  the  armiies  of  Justinian,  defeated 
the  Vandals  in  Africa. (226)  Grotius  cites  them,  as 
an  example  of  the  difference  between  those  expen- 
ses, incurred  by  princes,  who  are  masters  of  the  sea, 
for  the  benefit  of  others,  and  those  which  they  incur 
for  tlieir  own  private  advantage. (227)  From  the 
utility  of  these  establishments,  Baldus*  maintains,  that 
maritime  tolls  are  as  lawf"ul,  as  tolls  imposed  on  land. 


(22'1-)  Apuleius,  dc  mimd.  Quint.  Curt.  lib.  5. 

(225)  Livy,  lib.  2,  et  8j  decad.  3.  Caesar  Comment,  lib.  2,  et  3. 
Vegetius  Dere  milii.  lib.  3,  ch.  5. 

(226)  Aimonius  Monachus,  Degest.  Franc,  lib.  2,  cap.  6. 

(227)  Grotius,  De  jure  belli  ac  pads,  lib,  2,  cap.  3,  §  14.  Qiiare 
nee  contra  jus  nature,  aiit  ^entiwnfaciet,  qui  recepto  in  se  onere  tu- 
endcc  navigationis,  juvandce  per  ignes  nocturnes,  et  brevinm  signa, 
vectlgal  aquum  imposuerint  navigantibus ,  quale  fuit  Romunum  xecti~ 
gal,  Erythrceum  ob  sumtus  exercitus  maritimi  adversus  piraticas  cx- 
cursiones  et   qvnd   in   Porto  Bizantini  exigebant  llccyuylov  et   quod 

Jam  nlim  Athenienscs  occupata  Chrysopoli  exegtrant  in  ponto  eodem, 
memorante  uiru7nque  tolybio;  et  quod  in  Hellesponto  olini  Athenien- 
scs eosdcm  exegisse  ostendit  Demosthenes  in  Leptinem  ;  sua  aiite7n  tem- 
pore Roinanos  Imperatores  in  arcana  historia  memorat  Procopius. 

*  Baldus  was  a  professor  of  law  at  Padua,  and,  afterwards,  at  Pa- 
via,  in  the  14th  century,  and  died  about  the  year  1400.  He  was 
the  pupil  an:!  rival  of  Bartolus.  His  works,  but  little  read,  are  con- 
tained in  3  vols,  folio T. 


Chap.  Ill,  OF  EUROPE.  229 

Sound  duties  imposed  by  Denmark,  on  tlie  passing  into  the  Baltic. 

for  the  passage  of  rivers,  bridges,  roads,  and  in  other 
cases  of  a  similar  nature. (228) 

4.  Some  modem  powers  have  established  duties 
of  this  kind. (229)  Denmark,  in  particular,  has  im- 
posed a  tax  on  the  passage  of  Elsineur,  or  Elsingeor, 
on  all  vessels  going  in,  or  out  of,  the  Baltic  sea, 
through  the  sound, (230)  between  Zealand  and  Sca- 

(228)  Bald.  tit.  De  Her.  divis.  col.  2,  vers.  Numquid  ibi.  Vccii- 
galia  marithna  sunt  aqnisiwia,  qiioniarn  ad  tuitionem  maris,  et  verani 
in  eo  securltnteni  prxslandum  constilula  reperiuntur,  qua  sane  ingen- 
tem  sumptuum  iiiolem  exigit :  quorum  snbluramen  quia  pomgant  illi 
qui  securitate  fruuntur,  quis  negare  ausit  ?  Vid.  de  Affiut.  ad  cap.  88, 
Verb.  Vectigal.  n.  101,  et  Cacher.    Decis.  Pede.  decis.  \b\;per  tot. 

(229)  The  dukes  of  Savoy,  in  quality  of  counts  of  Nice,  receiv- 
ed a  duty  which  tiicy  called  de  I'ilk-Frunche,  on  all  ships  passing 
by  that  port,  at  the  distance  of  eighteen  miles.  The  princes  of  Mo- 
naco imposed  a  similar  duty. 

(230)  The  Sound  is  the  famous  strait  between  the  island  of  Zea- 
land, which  makes  part  of  Denmark,  and  the  main  land  of  Schonen, 
belonging  to  Sweden.  On  the  Danish  side,  is  the  town  of  Elsi- 
neur, with  the  fortress  of  Cronenburgh,  near  which  is  a  tolerably 
good  road  for  ships.  On  the  Swedish  side,  is  the  town  of  Helsin- 
bourg,  with  a  castle  in  ruins.  Vessels  trading  to  the  Baltic,  pass 
and  repass,  between  the>e  two  places  ;  and  it  forms  the  proper  pas- 
sage into  that  sea.  Though  the  great  and  little  Belt,  are  also  pas- 
sages leading  into  the  Baltic,  yet  they  are  little  frequented.  The 
little  Belt  is  not  deep  enough,  and  the  great  Belt  is  filled  with  rocks 
and  shoals,  just  covered  by  (he  water,  so  that  vessels  run  great  risk 
in  passing  through  it ;  the  Sound  is  very  deep,  though  it  is  not 
more  than  half  a  mile  wide,  near  Connemburgh,  and  the  objects  on 
either  shore,  may  be  clearly  distinguished.  Great  care  has  been 
taken  to  place  lights  on  all  parts  of  the  coast,  where  there  is  the 


2S0  THE  MARITIME  LAW        Part  /. 


Treaty  between  England  and  Denmark,  as  to  tlie  Sound  duties. 

nia,  in  proportion  to  the  burden  of  the  ships,  and  the 
value  of  the  goods  on  board,  Tiie  Danes,  to  whom 
the  latter  province  formerly  belonged,  and  who,  con- 
sequently, were  masters  of  both  shores,  have  taken 
care,  though  they  have  since  lost  the  province,  to 
preserve  the  possession  of  the  toll,  which  now  con- 
stitutes a  considerable  branch  of  their  public  reve- 
nue. 

5.  This  right  was  originally,  in  part  founded  on 
an  acrreement  made  between  the  first  naviorators 
who  passed  this  Sound,  and  the  sovereigns  ot  Den- 
mark, who  undertook  to  establish  in  the  Categat, 
light-houses  and  other  signals,  to  serve  as  guides  to 
ships,  and  to  guard  them  against  accident,  and  for 
•which  each  vessel  was  obliged  to  pay  a  certain 
duty.  In  the  lapse  of  time,  new  duties  have  been 
imposed  on  goods,  which  have  been  ratified,  and 
acknowledged  as  lawful,  by  subsequent  treaties  with 
other  nations. 

6.  Henry  VI.  king  of  England,  in  1450,  made  a 
treaty  with  Cnristian,  king  of  Denmark.  After- 
wards, by  a  second  treaty  between  Henry  VII.  and 
king  John,  concluded  in  1 490,  the  two  nations  mu- 
tually granted  to  each  other,  entire  freedom  of  com- 
merce,  by  land  and  sea,  in  their  respective  states, 

least  danger.  Other  beacons,  when  lighted,  serve  to  guide  vesselr. 
in  dark  .and  stormy  nights.  In  short,  every  precaution  has  been 
taken  to  render  this  passage  as  safe  as  possible. 


Chap.  I  I  J.  OF  EUROPE.  231 


Treaties  between  Denmark  and  \  arious  nations,  as  to  the  Sound  duties. 

on  paying  the  customary  duties,  excepting  in  cases 
of  stranding  and  shipwreck.  Those  who  wish  to 
enter  the  Baltic,  arc  bound  to  pav  the  Sound  duties, 
and  to  pass  always  through  the  Strait,  and  not  by 
the  two  Bjlts,  unless  when  forced  to  do  so  by  stress 
of  weather :  in  such  case,  on  proving  the  truth  of  the 
fact  by  the  oath  of  the  captain,  or  of  two  seamen, 
they  must  pay  the  same  duty  at  the  custom-house  at 
Nyburg.  The  English  made  a  third  treaty  with 
Denmark  in  1G70,  in  consequence  of  which  they 
are,  particularly  as  to  the  Sound  duties,  placed  among 
the  number  of  the  most  favoured  nations. 

7.  In  1533,  during  the  interregnum  of  the  queen 
regent  of  the  Low  Countries,  the  first  treaty  was 
made  between  Holland  and  Denmark,  relative  to 
the  Sound  duties.  At  the  peace  of  Spires,  concluded 
in  1543,  between  the  emperor  Charles  V.  and  Chris- 
tian III.  the  latter  engaged  not  to  demand  from  the 
Dutch,  Flemings,  and  the  inhabitants  of  the  Low 
Countries,  a  greater  Sound  duty,  than  a  rose-noble'*- 
for  each  ship. 

8.  In  1645,  the  Sound  duties  were  fixed  by  a  per- 
manent regulation  ;  and  a  treaty  was  concluded  the 
same  year,  in  relation  to  tliis  object,  at  Christian- 
pole,  a  small  Swedish  town,  then  belonging  to  Den- 


A  piece  of  gold  coin,  of  the  value  of(?>.  8d.   sterling,  or  one 


dollar  and  forty-eiglit  certs. 


232  THE  MARITIME  LAW        Part  L 


Nations  favoured  by  Denmai-k,  as  to  Sound  duties. 


mark,  between  that  kingdom  and  the  states-<7-eneral 
of  the  United  Provinces.  To  this  treaty  was  subjoin- 
ed a  tarif  of  the  duties  to  be  paid  by  ships  and  goods 
passing  the  Sound,  on  entering,  or  coming  out  of 
the  Baltic.  This  treaty,  and  the  tarif,  have  served  as 
the^basis  of  other  stipulations  of  the  same  kind,  since 
made  with  England,  and  France,  in  1770.  At  the 
present  day  this  tarif  is  the  only  one  used,  in  the 
custom-houses  of  the  Sound,  for  the  ships  and  goods 
of  all  nations. 

9.  In  1663,  was  concluded  the  first  treaty  be- 
tween France  and  Denmark,  relative  to  the  duties 
of  the  Sound,  This  treaty  was  renewed  in  1742. 
Since  that  period,  the  French  have  been  considered 
as  one  of  the  most  favoured  nations  in  regard  to  this 
passage.  This  title  of  favoured  nation  is  of  so  lit- 
tle advantage  to  those  who  are  distinguished  by 
it,  that  it  excites  no  jealousy  in  those  who  are  not 
among  the  number.  It  consists  in  this,  that  the 
most  favoured  nations  pay  one  per  cent,  duty  on 
goods,  not  comprised  in  the  tarif,  while  others 
pay  one  and  a  quarter  per  cent.  Among  the  for- 
mer are  included  the  English,  Dutch,  French, 
Swedes,  Spaniards,  Portuguese,  Russian?,  Neapoli- 
tans, and  the  city  of  Hamburg  on  the  Elbe. 


Chap.  III.  OF  EUROPE. 


233 


Duties  of  masters  of  vessels  on  entering'  ports. 


ARTICLE  III. 

Of  Ports,  Bays,  and  Gulfs. 

§  1.  THE  navigation  of  seas  renders  necessary 
the  use  of  ports;  as  flowing  from  the  law  of  nations, 
it  is  a  public  use ;  every  ship,  for  this  reason,  may 
approach,  anJ  cast  anchor  in  any  port,  provided,  it 
be  furnislied  with  the  necessary  papers  to  prove  that 
it  belongs  to  a  friendly  nation.  But,  as  a  conse- 
quence of  the  empire  of  the  territorial  sea,  every 
port  must  be  considered,  as  belonging  to  the  state 
within  which  it  is  situated,  and,  therefore,  subject  to 
the  jurisdiction  of  the  ruling  power.(23l) 

2.  Whenever  a  ship  enters  a  port,  the  master  is 
bound  to  conform  to  the  usages  and  regulations 
which  are  there  established,  to  take  his  station  in 
the  customary  places,  where  other  vessels  of  the 
same  nature  and  burden  are  stationed,  and  at  the 
distances  prescribed,  to  obey  the  instructions  he 
may  receive  from  the  harbour-masters  for  that  pur- 
pose ;  and,  finally,  to  pay  all  duties  and  charges 
that  are  there  imposed. (232.) 

(231)  Instit.  lib.  2,  tit.  1,  §2.  De  Rer.  divis.  Dig.  lib.  1,  ti(.  8, 
I.  4,  §  I.  eod.  Feudor.  lib  2,  cap.  unic.  9u(t  siitt  regal.  Riclieri  ia 
cod.  lib.  2,  tit.  1,  defin.  2.  Loccenius,  Dejure  imriliino,  lib.  l,cap. 
S,  §  2,  3,  et  4. 

(232)  Cod.  lib.  12,  tit.  45,  De  Lilior.  et  itiner.  custodia.  Conso- 
lato  del  mare,  cap.  199,  2G0,  et  224.  Ciijac.  ad  tit.  cod.  de  vectigal. 
ct  comm,  Loccenius,  De  jure  mar  it.  lib.  1,  cap.  8,.  §  \,5,ct  sequ. 

Vol.  I.  G  g 


234.  THE  MARITIME  LAW      Part  L 


Duties  relative  to  ports,  applicable  to  bays  and  gulfs. 


3.  These  obligations  relative  to  ports,  are  of  equal 
force  in  bays  and  gulfs,  inasmuch,  as  they  also  make 
a  part  of  the  sovereignty  of  the  state,  within 
whose  dominion  and  territory  they  are  situated,  and 
are  equally  placed  under  its  safeguard  and  protec- 
tion ;  consequently,  the  asylum  afforded  in  a  bay,  or 
gulf,  is  no  less  inviolable,  than  in  a  port,  and  every 
breach  of  jurisdiction,  committed  in  the  one,  as  well 
as  in  the  other,  must  be  considered  as  an  open 
violation  of  the  law  of  nations.(233) 


(233)  Hubner,*  Delasaisie  des  batimens  ntidrcs,  torn.  1,  ch.  8, 
§  !0.  Valin.  Comment  ci  VorcLon.  de  France,  liv.  4,  art.  I,  tit.  De$ 
Rades. 


•  Hubner  expresses  himself  verj'  pointedly  on  this  subject.  "  In  fact,"  says 
he,  "  an  independent  nation  is  not  oblig'ed  to  render  any  account  to  another 
of  what  passes  within  its  own  jui-isdictions  ;  unless  it  has,  in  certain  respects, 
so  far  tied  itself  down  by  formal  ti-eaties.  Much  less  is  it  obliged  to  permit 
sti'sngers,  who,  under  any  pretest  w Late\ei',  enter  its  ports  or  bays,  or 
come  witliin  reach  of  cannon-shot,  to  visit  its  vessels.  The  sovereignty  of 
the  place  forbids  even  the  ships  of  war,  or  privateers  of  belligerents,  from 
visiting  or  captoring  the  vessels  of  their  enemies,  within  such  neutral  terri- 
tory ;  for  a  much  stronger  reason,  ought  they  to  refrain  fiom  any  act  of  this 
kir.d  in  regard  to  neutral  vessels.  Such  belligerent  vessels  are  themselves 
subject  to  the  temporary  jurisdiction  of  the  sovereign  of  the  place ;  so  far  at 
leastj  as  the  security  of  its  citizens,  the  ti'anquillity  of  the  state,  and  the  gen. 
eral  laws  of  society  require.  If  the  commander  of  a  belligerent  vessel  should 
so  far  forget  Iiitnsclf,  as  to  exei'cise  any  act  of  authority,  jmnsdiction,  or 
hostility,  tow:u'ds  other  vessels  within  such  ncuti'al  tern  tor}',  he  can  only  blame 
himself,  if  treated,  prosecuted,  and  punished,  as  a  disturber  of  the  public 
repo.se,  and  a  violator  of  the  supreme  aiitliorlty  of  the  sovereign  of  tlie 
country.  The  latter  has  full  right  to  proceed  in  tliis  manner.  If  he  does  not 
choose,  on  some  occasions,  to  exercise  this  right,  but  contents  himself  with 
oomplaiiiing  to  the  sovercig-n  of  such  offenders,  of  tlieir  acts  of  %'iolence,  it 
is  an  attention  on  his  part,  which  the  other  ought  to  take  kindly,  and  be 
tlic  more  rci.dy  to  give  him  the  fullest  satisfaction,"-. ...T. 


Chap.  III.  OF  EUROPE.  23i 


Of  various  maritime  duties. 


ARTICLE  IV. 

Of  other  Maritime  Duties^  and  of  Anchorage  Duty, 

§  1.  MARITIME  nations  have,  also,  aright  to 
impose  such  contributions,  and  imposts,  on  the  terri- 
torial sea,  as  they  may  judge  necessary  to  defray  all 
the  charges  and  expenses,  which  the  public  securi- 
ty, and  the  convenience  of  navigation,  require.  For 
this  reason,  when,  for  the  purpose  of  rendering  na- 
vigation secure,,  and  to  aid  mariners,  light-houses, 
buoys  placed  to  point  out  sand-banks,  and  com- 
panies of  coast-pilots,  are  supported,  a  reasona- 
ble toll  may  be  levied  on  all  vessels,  without  any 
infraction  of  natural  law,  or  the  law  of  nations, 
like  that,  formerly  exacted  by  the  Romans  in  the 
Red  Sea,  to  reimburse  the  expenses  of  the  naval 
force,  which  they  maintained  against  the  pirates. (234) 
The  Byzantines  made  the  vessels  that  entered  the 
Euxine,  pay  a  small  duty,(235)  as  did  the  Athe- 


(234)  Pliny,  I listor.  natural,  lib.  6,  cap.  22,  speaks  ot"  a  certain 
Annius  Plocanus,  who  had  farmed  the  toll  of  the  Red  sea  :  Id  accU 
dit  hoc  modo ;  Annii  Flocanii  qui  viaris  Rubri  vectigal  afisco  rede- 
nierat  lihertas  circa  Arabiam  navigaiis,"  &c.  And  in  the  lollowing 
chapter,  where  he  treats  of  the  navigation  in  the  Indies,  he  says, 
that  on  account  of  pirates,  they  embarked  companies  of  archers  ori 
board  of  their  vessels,  which  sailed  every  year.  Donee coiupen- 
dia  invenit  mcrcator  Incroque  India  admota  eat.  2uippe  omnibus  an. 
rds  navigalur  saggitariorum  cohortihus  impositia;  tt  enim  pirata 
maxime  infentant. 

(235)  IJerodian,  lib.  S,  cap.  1,  n.  11.    Procopius,  cap.  25. 


i 


236  THE  MARITIME  LAW        Part  L 

Tributes  levied  by  tiie  ancient  nations  on  vessels. 

nians,(236)  formerly,  in  the  same  sea,  when  they 
were  masters  of  Chrysopolis,  opposite  Byzantium. 
The  Athenians  also,  levied  a  tribute  in  the  Helle- 
spont ;(237)  the  Romans  did  the  same,  in  the  time 
of  Procopius,(238)  and  it  is  the  practice,  at  the 
present  day,  among  most  of  the  powers  of  Eu- 
rope.(339) 

2.  This  has  given  rise  to  the  duty  on  anchorage, 
the  power  of  pressing  vessels  for  a  particular  ser- 
vice,* and  of  detaining  vessels  anchored  in  ports 
and  roads. 

(236)  Polyhius,\\h.  4,  cap.  4't. 

(2.'57)  Xenophon,  Grac.  Hist.  lib.  4,  cap,  S,  §  27  e<  31. 

(238)  Procopius,  in  arcana  hist.  cap.  25. 

(239)  Dig.  lib.  39,  tit.  4,  1.  10,  De publican,  et  ted.  Chacheran, 
Decis.  155,  n.  3.  Zuarius,  De  nsu  maris,  cons.  1.  St_)pnaanniis,  Jus 
marit.  Hanseat.  par.  I,  cap.  5.  Loccenms,  Dejur.  mar.  lib.  1,  cap. 
4,  n.  6.  Casaregis,  De  Comm.  Disc.  136,  n.  1.  Heinecc.  in  Frce- 
lect.  Acad,  ad  Grot.  lib.  2,  cap.  3,  §  14.  Privim  effectus  est  Jus  im- 
ponendi  recti galia :  cvjtis  juris  ccquitatejn  Grotius  suo  more  probat 
ex  eo  qund  dentitr  in  compensaiinneni  impensariim  Jactartivi  arepuhli- 
ca  ex  moribus  et  consensu  gentium.  Osteiidit,  enivi  et  B.07iianoSyei  By- 
santinos,  et  Athenienses  exegisse  a  Jtariguntibus  vectigalia. 

*  La  faculty  d'tiser  des  angaries. — The  French  word,  angarie,  is 
taken  from  the  Greek  ;  (see  the  next  article)  among  the  Persians, 
angarus  was  a  royal  messenger,  employed  ibr  the  speed)'  convey- 
ance of  public  dispatches,  and  had  the  power  of  pressing  horses, 
carnages,  and  men,  for  this  service ;  and  among  the  Greeks  and  Ro- 
mans, angara,  inns  or  post-houses,  appear  to  have  been  establish- 


Chap.  III.  OF  EUROPE.  237 

Anchorage  duty  on  ships. 

3.  Anchorage-money  is  a  duty  collected  from  a 
foreign  ship,  when,  for  greater  safety,  it  is  desirous 
of  casting  anchor,  and  of  continuing  in  a  port  or 
road.  Justice,  however,  requires,  and  it  is  the  ge- 
neral practice,  that  when  a  ship  departs  from  a  port, 
where  it  has  paid  anchorage-duty,  and  is  compelled, 
by  any  accident,  to  return,  without  having  touched 
at  any  other  place,  not  to  exact  another  payment  of 
this  duty. (240)  For  the  same  reason,  whenever  a 
ship  enters  a  port,  from  necessity,  or  on  her  way,  she 
is  not  bound  to  pay  the  established  duties,  except 
those  of  anchorage,  which  she  must  pay,  though  no 
goods  are  unladen,  nor  any  sale  made.(24l) 

ed  along  the  road  for  that  purpose.  The  word  frequently  occurs  in 
the  Digest  and  Code,  and  signifies  any  Jorctd  saiice.  Angariuri 
estcogi.  Gregoriusj  8.  Epist.  14.  Angariariid  est  cogere ,  verhum 
Persicutn.  Suidas.  See  note  to  law  4,  Dig.  49^  tit.  18.  By  the  Ro- 
man law,  no  person  was  excused  from  contributing  to  this  sen  ice, 
either  on  account  of  his  Civil  dignity,  or  his  religious  profession. 
Neminem  ab  angariis,  lel  parangariis,  rtl plausiris,  xel  quoUbei  7mi- 
nere  excusare  precipimus,  cum  ad  felicissiminn  cxpeditionevi  nosiri 
numinis  omniitm  Provincialiinn  per  loca,  (jua  iter  arripivius,  dtbeant 
solila  nobis  viinisteria  exkiberi,  licet  ad  sacrosanctas  Ecclesias posses- 
siones  pertineant.  Code,  lib.  I,  tit.  II,  leg.  2.  The  word,  as  used 
in  modern  times,  is  confined  to  the  pressing  of  ships T. 

(240)  Dig.  lib.  39,  tit.  4,  leg.  15,  Depubli.  et  vectig.  Targa,  Pond, 
mar.  cap.  72.    Casaregis,  De  Com.  disc.  10. 

(241)  Dig.  lib.  39,  tit.  4,  leg.  15,  §  8.  Depubli.  et  vectig.  Loc- 
cenius,  dejure  maritimo,  lib.  1,  cap.  8  et  9.  Casaregis,  de  Comm. 
disc.  10. 


238  THE  MARITIME  LAW        Parti, 

Of  the  impressment  of  ships- 

ARTICLE  V. 

Of  the  Pressing  of  Ships* 

§  1.  BY  the  impressment  of  ships,(242)  (which  is 
one  of  the  prerogatives  of  supreme  power)  is  meant 
the  exaction  of  certain  services  and  duties,  imposed 
by  a  sovereign  on  ships,  riding  in  his  ports  and  roads, 

*  Des  Angaries. 

(2-t2)  Angarie  is  a  word  derived  from  tlie  ancient  language  of 
the  Persians,  as  Herodotus,  lib.  S.  Hesjchiusand  Suidas,  and  after- 
wards Brisson,  lib  2,  de  resio  person,  principatv ,  have  remarked. 
After  the  Persians  became  masters  of  the  east,  this  word,  sa>  s  Gro- 
tius,  in  his  Commentarxf  on  thefijth  chapter  af  St.  Mattheiv,  passed  to 
the  Hebrews,  and  from  the  latter  to  the  Greeks.  Among  the  an« 
cient  Greeks  Ayyocoila,,  was  the  same  thing  as  ^e\i\»,  and  signi- 
fied the  service,  or  work  exacted  from  a  person  against  his  will. 
Among  the  more  modern  Greeks,  Ayyaju*  is  used  for  the  pas- 
sage itself,  or  act  of  transportation  by  a  public  road.  Commenta- 
tors have  understood  in  this  sense,  the  expression  Angariarum  and 
^n^(2rio?7,  of  the  law  4,  Digest  lib.  49,  tit.  18,  depririleg.  Vetera- 
nor.  and  of  the  law  7,  of  Code,  lib.  1 1,  tit.  9.  It  is  also  sometimes 
expressed  by  the  term  serrhe  naves.  We  find  an  example  of  this 
in  the  ancient  inscription,  mentioned  by  Gruterus,  page  642,  n,  2, 

Sub.  L.  Aruntio.  Stella 

Navis.  Harenaria.  2ua: 

Seriit.  in  EmiUanis 
Redemptore 

Lelio.  Mucio.  Felice.-f 


■  t  See  Loccejilus,  jure  maritimo,  lib.  1,  cap.  5,  §  2,  from  which  thtf 
above  is  taken.  The  word  in  German  and  Belgic,  is  pt?fs>cn,  in  Eng-. 
^\  to  press: 


Chap.  Ill,  OF  EUROPE.  239 

Pressing  of  ships  is  a  royal  prerogative. 

in  the  time  of  some  public  expedition,  for  the  trans- 
portation of  soldiers,  arms,  and  other  vvarlikfe  am- 
munition, for  a  certain  reward. (243) 

2.  This  right  to  press  ships,  is  a  royal  prerogative 
which  all  sovereigns  may  exercise  in  cases  of  public 
necessity,  or  utility.*  Though  foreign  vessels  are  thus 
obliged  to  perform  the  duties  imposed  by  virtue  of 
this  right;  yet  it  does  not  destroy  the  liberty  of 
commerce  and  navigation,  since  it  is  temporary,  and 
takes  place  only  when  necessity,  or  the  public  good 
requires  it.  But  as  it,  in  some  degree,  infringes  this 
liberty,  at  least  for  a  time,  the  exaction  of  this  ser- 
vice may  be  guarded  against  by  a  convention  to 
that  effect.  It  is  so  stipulated  in  the  l8th  article 
of  the  treaty  of  1753,  between  the  king  of  Naples, 
and  Holland,  and  in  the  24th  article  of  the  treatv 
of  1787,  between  France  and  Russia. 

3.  No  ship  can  be  excused  from  these  services, 
under  the  pretext  of  dignity  or  personal  privilege  ; 
all  foreign  ships,  belonging  to  other  powers,  arc 
obliged  to  perform  them,   even,   though  they  arc 

(24-3)  Vinnius  ad  Peckium,  cdl^/Y,  Cod.  de  naiibiisnon  cxcusandis. 
Stypmannus,jur.  maritim.  par.  b,  Cap.  1,  n.  32.  Loccenius  de  jur. 
mark.  lib.  I,  cip.  b,  %  3.  Code  lib.  2.  Feiidor,  tii.  qua:  sint  rega- 
lice.  Targa.  Pomkraz.  7narit.  cap.  73,  who,  in  §  I,  gives  a  most 
extraordinary  origin  to  these  impr-esscs. 

*'  Mo\\o\  J  de  jure  mar?  ti  mo,  lib.  I,cli.  G,  confines  the  exercise 
of  the  right  to  cases  of  extreme  necessity  :  And  he  ngrecs  with  Loc- 
cenius, lib.  I,  cap.  5 T. 


240  THE  MARITIME  LAW         Part  I. 


All  vessels  liable  to  be  pressed. — Penalty  for  disobedience  or  misconduct. 


under  an  engagement  to  carry  their  cargoes  else- 
where within  a  given  time ;  they  have  the  right  only 
of  requiring  an  indemnity. (244) 

4.  If  the  master  of  a  foreign  ship,  finding  him- 
self thus  circumstanced,  endeavours  to  escape,  that 
he  may  avoid  this  duty,  or  to  retard  the  transporta- 
tion of  the  articles  to  the  destined  place,  or  shall, 
in  any  manner  whatever,  raise  difficulties  prejudicial 
to  the  success  of  the  expedition,  his  ship  will  be  sub- 
ject to  confiscation,  and  his  crew  liable  to  punish- 
ment, proportioned  to  their  breach  of  good  faith-x(245) 

5.  If  the  master,  instead  of  proceeding  to  the 
place  of  destination,  touch  elsewhere,  and  there 
sell  the  cargo  of  provisions,  or  implements  of  war, 
it  is  usual  to  inflict  on  him  the  most  rigorous  punish- 
ment, even  that  of  death ;  those  who  knowingly 
purchase  the  eflPects  are  equally  exposed  to  the  same 


(24.4-)  Leg.  4,  §  1,  Dig.  lib.  49,  tit.  18,  De  Vetera/lis.  Leg.  IS., 
§  24.  Leg.  ult.  §  22,  et  23.  Dig.  lib.  50,  tit.  4,  Oe  Muner.  et  Honor. 
Leg.  1  et  2,  Cod.  lib.  1 1,  tit.  5,  De  Nuvib.  non  excus.  a  leg.  miic. 
Cod.  lib.  11.  tit.  26,  De  Naut.  T)ber.  Sixtin.  de  Regaliis.hh.  2, 
cap.  23,  n.  22.  SelJen,  Mare  clausum.  lib.  2  cnp.  20  Siypman. 
Jus.  Marit.  par.  b,  cap.  1,  n.  23,  Loccenius  loc.  cit.  §  b,  n.  23. 
Amrariarum  onus  et'uvn  exteros  ajjicit,  ait  Sti/pinannus,  quod  quo- 
tidiana  confirmnt  praxis,  cum  line  tamen  lege,  ut  sui  luhoris  et  officii 
digna,  capiant  prienua  emolumentaque.  ^ 

(2tj)  Leg.  1.  Cod.  lib.  1  I.  tit.  3,  de  nav.  non^xcui.  Leg.  10, 
Cod.  de  sacros.  Ecclts,  e  leg.  ult.  Cod.  lib.  1 1 ,  tit.  9,  de  Fabriccn- 
sibus. 


Chop.  III.  OF  EUROPE.  241 


Vessels  pressed,  if  shipwrecked  or  captured. 


penalties;  at  least,  they  are  liable  to  a  rigorous  and 
extraordinary  punishment,  according  to  the  exigency 
of  the  case. ('2 46) 

6.  If  any  of  the  vessels  happen  to  be  shipwreck- 
ed, or  taken  by  enemies  or  ()irates,  the  sovereign  is 
not  bound  to  make  reparation  for  the  loss,  these 
events  being  merely  fortuitous,(2 i7)  provided,  there 
is  no  imputation  against  the  commander  of  the 
transports. (248)  For  the  same  reason  the  master 
cannot  be  prosecuted  by  the  sovereign,  if  he  should 
lose  his  cargo  by  shipwreck,  or  by  any  event  of  the 
like  nature. (249)  It  would  be  unjust,  also,  to  compel 
a  ship  to  make  more  than  one  such  voyage,  or  trans- 
portation. (250) 


(246)  Leg.  3  et  4.  Cod.  lib.  4,  tit.  40,  2rw  Us  rendi  non  poss* 
Leg.  5,  Cod.  lib.  2,  tit.  I ,  de  navicuL  Peckuis  et  Vinnius,  ad  Leg.  5. 

(2+7)  Cum  nemo  ex  fnclo  alieno  obligetur.     Leg.  23.  dig.  dc 
Regut.  Jur. 

(248)  Nisi  princeps  ipse,  rel  per  suos  damnum  ihtulerit  quia  pro- 
prium  factum  intertenit.  Sixtin.  in  loc,  cit. 

(249)  Loccenius,  in  loc.  af.  cap.  7,   §  11.    Christineu.   decis. 
SS,  n.  2.    Et  testatur  iiajudicatutn  a  Senatu  Brabantino. 

(250)  Loccenius,  in  loc.  cit. 


•  The  4th  law  of  this  title  in  the  code,  makes  a  distinction  between  the 
ftficndcrs :  tlie  more  noble,  and  honourable  were  proscribed,  and  all  their 
propc!lv  confiscated ;  while  persons  of  inferior  rank,  and  low  condition,  wei*e 
punislicd  c.fj)itaUv.  Hor.estiores  qiiiJem  stlum  proscriptionis  et  omnium 
quorum  aviissionevi  incurrant ;  inferiores  auteni  vilioresque  pertonx  capi- 
tali  supplicio  tubjaceant T. 

Vol.  L  H  h 


242  THE  MARITIME  LAW        Part  1. 


Of  embaigoes,  or  detention  of  fiiendly  ships. 

'"■■''  a 

7.  We  must,  however,  carefully  distinguish  the 
impressment  of  ships,  on  account  of  a  war,  from 
that  made  for  the  transportation  of  goods  on  oc- 
casion of  the  discovery,  or  conquest  of  some  re- 
gion or  island  in  the  new  world,  or  for  other  con- 
voys of  the  same  nature.  It  is  certain,  that  if  ships, 
pressed  for  other  objects  than  a  military  expedition, 
suffer  shipwreck,  or  are  taken  by  enemies  or  pirates^ 
the  sovereign  who  ordered  them  on  the  voyage, 
ought  to  indemnify  the  owner  for  the  loss,  since  it 
is  unreasonable  that  any  one  should  suffer  from  an 
expedition,  intended  solely  to  benefit  another.(25l) 


ARTICLE  VI. 

Of  Embargoes^  or  the  Detention  of  friendly  Ships, 

§  1 .  THE  right  of  stopping  or  detaining  the  vessel 
of  a  friend,  is  derived  from  the  same  source  as  that 
of  impressing  ships.  Embargo  is  an  act  by  which 
a  sovereign,  or  power,  not  an  enemy,  detains  one  or 
more  vessels,  lying  in  his  ports,  or  in  the  roads  of 
his  dominions,  or  prohibits  their  departure,  on  oc- 
casion of  some  public  necessity,  and  not  on  account 
of  war.  This  detention  is  made  upon  the  payment, 
to  the  vessels  retained  in  such  circumstances,  of  a  rea- 
sonable freight,  equal  to  what  they  might  have  other- 
wise earned  j  which  is  agreeable  to  the  principles  of 


(251)  Slxtinus  fie  Regaliis,  lib.  2,  cap.  13.    Loccenius,  in  be. 
di.  ch.  5,  §  9. 


€hap.  III.  OF  EUROPE.  24S 


Inconvenience  of  embargoes,  provided  against  in  modem  treaties. 


equity  and  justice,  and  the  universal  practice  of  Europe. 
Detention  differs  wholly  from  capture ;  the  one  has 
for  its  object  the  appropriation  of  the  thing  taken; 
the  other  to  retain  it  only  for  a  necessary  purpose, 
restoring  it  afterwards,  or  paying  its  value. (232) 

2.  Without  repeating,  in  this  place,  all  that  Gal- 
liani,  in  his  book  before  cited,  has  ventured  to  say, 
in  order  to  prove  the  inconvenience  and  injustice  of 
the  practice,  it  may  be  observed,  that  as  the  right  of 
detaining  friendly  ships  shackled  commerce,  it  was 
stipulated,  for  the  first  time,  in  the  18th  article  of 
the  treaty,  between  the  king  of  the  two  Sicilies,  and 
Holland  in  1753,  that  ships,  their  crews  and  car- 
goes, should  not  be  detained  by  any  general,  or  par- 
ticular order,  nor  for  any  reason,  or  occasion  what- 
ever, not  even  under  pretence  of  the  safety,  and  pre- 
servation of  the  state.  This  convention  appeared  so 
prudent,that,inashorttime,itwas  generally  adopted, 
and  has  since  been  included  in  all  subsequent  trea- 
ties between  the  different  powers  of  Europe. (25 3) 

(252)  Leg.  13,  §  11,  lib.  50,  tit.  4,  Dig.  De  mmerib.  et  honorib. 
Leg.  1,  lib.  1 1,  tit.  3,  Cod.  De  navibus  noii  excus.  Perezius,  Corvi- 
nus  et  Peckius.  Marquard. /)e  jwre  ?«flriV.  cap.  5,  n.  38.  Guidon 
de  la  mcr,  chap.  7,  art.  6.  chap.  9,  art.  6  and  13.  Ordinance  de  la 
marine  de  France,  art.  1,  tit.  Des  IcUres  de  marque.  See  also  the  pre- 
ceding article. 

(253)  Mably.  Droit  public  de  VEuropc,  p.  301 . 


V^ 


244  THE  MARITIME  LAW        Part  L 


Strangers  subject  to  the  internal  jurisdiction  of  territorial  seas. 


ARTICLE  VII. 

Of  the  internal  Jurisdiction  over  territorial  Seas. 

§  1.  THE  internal  administration  of  justice  exclu- 
sively belongs  to  the  proprietor  of  the  territorial  sea, 
and  the  executive  power,  charged  with  the  preven- 
tion of  disorders,  and  the  reparation  of  injuries, 
may  there  exercise  its  authority.  The  subjects  of 
the  sovereign  are  not  the  only  persons  amenable  to 
this  jurisdiction.  It  extends  to  strangers  navigating 
within  it,  who  are  considered  as  temporary  citizens, 
andmembersofthe  same  political  body. (254)  Forthis 
reason,  whenever  the  delinquents  are  private  indi- 
viduals, the  tribunals  commissioned  for  that  purpose, 
inflict  on  them  punishments,  proportioned  to  their 
offences  ;{25 5)  but  if  the  persons  guilty  of  these  dis- 

(254)  Tertia  potestas  ilia  (nempejurisdictio  Frincipis)  extendilur 
quoque  in  udtena>,  quijixum  domiciliuin  non  habent,  sed  vel  ad  tem- 
pus,  vel  saltern  transeunt,  quia  dum  ibi  sunt  intra  potestutis  illius  ter- 
viinos  sunt,  eaqne  conlinentur.  Qnidquid  autem  interea  temporis  ah 
ipsis  agitur  id  potestate  quoque  ejus,  qui  territorio  prteest,  eontinentur  ; 
quia  duin  agiint  v.  if.  cnntrahunt,  delinquunt  sub  en  potestate  sunt.  Hen- 
ri. Coccei.  ad  Grotium,  lib.  2,  cap.  1 8,  §  9.  Disp.  de  Fund,  in  territ. 
jurisdic.tit.  2,  n.  6.  Inter  exercit,  n.  5^.  Valtel,  Droit  des  Gens,  liv. 
2,  ch.  8,  §  1 63.   See  tlie  first  note  to  the  first  article. 

(235)  Hpinec.  in  Frclect.  Acad,  ad  Grot,  lib,  2,  cap.  3,  §  12.  ad 
Jinem.  'Huemadmodum  exteri,  qui  in  territorio  nostro  nuvisant.  Hint 
nullum  est  dubium,  quin  puniri  a  Belgis  possii  qui  in  mari  hoc  fais- 
trali  pitaticum  exerruit,  tel  Iwtnicidrum  cornmisit,  quumvis  sit  exte- 
rus.  Elal  finem  §  15.  Nos  addimus  et  invitis  vicinis  imperuntem 
mari  posse  leges  dc  usu,  navigationis  prccscribere.  Stypman.  de  jure 


Chap.  III.  OF  EUROPE.  245 


violations  of  this  jurisdiction  may  be  punished. 


orders,  are  nations  or  societies,  they  are  chastised  by 
the  public  armed  force,  until  they  give  satisfaction 
for  the  offence,  and  make  complete  reparation  for  the 
injuries  committed.  Such  is  the  origin  ot  naval 
wars  carried  on  against  lawful  poucrs,  or  unlaw- 
ful, as  pirates  and  corsairs,  the  disturbers  ot  the  public 
tranquillity,  and  against  all  those  who  interrupt  the 
security  of  navigation,  and  the  prosperity  of  com- 
iiierce.(256) 

2.  From  observing  the  rights  of  sovereignty,  even 
that  of  inflicting  the  punishment  of  death,  exercised 
by  the  commanders  of  ships  of  war,  in  ports  and 
bays  belonging  to  another  power,  some  authors,  and, 
among  the  number,  Hubner,(257)  have  pretended. 


maritimo,  par.  3,  cap.  I,  n.  19.  Sequitur potesias anhnadteriendiin 
facinorosos,  quam  connexam  esse  xull  salvo  conductui  Gilman,  et  ex- 
ilia  elicit  jurisdiciionem  et  cognoscendi  suptr  causis  site  civilibus, 
site  criminalibus,  si  in  littore  inter  vel  illos  ibi  habitanles,  aut  aliler 
illuc  accedenies  oriantur,  tel  cliam  in  inari  liltori  prvximo,  si  simul 
cum  littore  ad  certa  spatia  occupatum  sit. 

(256)  Authcnt.  Tlucc  in  Prorincia,  etc.  Cod.  ubi  de  crimine  agi 
oportet.  Loccenius,  dejurc  rnarit.  lib.  1,  cap.  4  et  6,  n.  4.  Stypman. 
ad  jus  marit.  par.  I ,  cap.  6,  n.  38 1 .  ibid.  "  El  quia  regna  non  artinn- 
ibus,  sed  arm  is  rindicaiilur  legiones  assumendo,  ubi  le^es  dejiciunt 
ventendum  ad  arma,  ubi  locum  intenire  Justitia  apud  adrersarium 
nequit.  Nullum  cnim  bellunijustius,  quam  quod  pro  rebus  repcten- 
dis  suscipitur. 

(257)  Hubner,  De  la  saisie  des  hdtimens  de  neutres,  speaking  of 
the  capture  of  a  neutral  vessel,  lays  down  without  any  proof,  the 
following  theory,  which  is  opposed  to  the  principles  above  adopt- 
ed.   "  Les  vaisseaux  neutres,  sontj  sans  contredit,  des  lieux  neu- 


t246  THE  MARITIME  LAW        Part  I. 


Authority  exercised  on  board  of  a  foreign  ship  of  war  in  a  neutral  port. 


that  such  ships  must  be  regarded  as  foreign  territory; 
for  this  specious  reason,  that  if  the  place  occupied  by 
the  vessel  continued  to  be  the  territory  of  the  sove- 
reign of  the  port,  such  acts  of  complete  jurisdiction 
could  not  be  exercised  in  his  presence,  and  within 
his  dominions. 

3.  It  will  be  easy,  to  remove  this  difficulty,  if  we 
consider  for  a  moment,  that  this  act  of  jurisdiction, 
supposed  to  be  done  on  board  of  a  ship  of  war,  is 
not  founded  on  the  right  of  territory ;  but  upon  the 
nature  of  the  military  command,  exercised  on  board 
of  her,  which  remains  unimpaired,  and  in  full  force, 
whenever  the  sovereign  of  a  port  consents  to  admit 
a  vessel  of  war,  as  such.  Without  this  continuance  of 
military  power,  it  would  be  impossible  to  govern 
the  ship's  company,  and  maintain  discipline  on 
board.  The  exercise  of  this  power  in  its  fullest  ex- 
tent, on  board  of  a  ship  of  war,  is,  therefore,  a  ne- 
cessary consequence  of  the  asylum,  granted  to  it, 
not  the  peculiar  right  of  the  commander  of  such 
ship,  much  less  a  territorial  right. 

tres — puis  qu'il  revient  au  in6me  d'enlever  des  effects  d'un  na- 
vire  neutre,  ou  de  les  enlever  d'un  territoire  neutre."*  Tiiis  argu- 
ment is  very  illogical,  as  will  be  shewn  in  the  second  volume,  when 
we  come  to  speak  of  the  effects  of  neutrality. 


*  This  position  of  Hubner,  was  advanced  before  him,  by  Mons.  Michel, 
the  Secretaiy  of  the  Prussian  embassy,  on  the  subject  of  captures  by  the 
British  in  the  war  of  1745,  and  which  produced  the  celebrated  memorial 
and  answer  in  1752 — 3 T. 


Chap.  III.  OF  EUROPE.  247 


The  internal  command  of  a  forei^  ship  of  war  remains  unimpaired. 


\ 


4.  Thus  it  follows,  from  the  nature  and  quality 
of  a  ship  of  war,  that  the  internal  military  com- 
mand remains  untouched :  but  that  in  every  other 
respect,  she  and  her  company,  are  subject  to  the 
jurisdiction  of  the  sovereign  of  the  place.  My  opi- 
nion, on  this  point,  is  founded  on  the  principle,  ge- 
nerally received,  that  a  foreign  army,  that  passes 
through,  or  stops  in  the  territory  of  another  sovereign, 
remains  subject  to  the  jurisdiction  of  the  country, 
though  the  military  authority  exists  unimpaired 
in  the  hands  of  the  commander,  by  virtue  of  the 
tacit  consent  of  the  sovereign  himself,  according  to 
a  principle  of  universal  reason,  that  he  who  grants  a 
right,  or  privilege,  grants,  also,  all  those  necessary 
incidents  and  powers,  without  which  it  could  not 
be  exercised,  or  used. (248) 


ARTICLE  VIII. 

Of  Commerce  and  Fishing. 

§1.  ANOTHER  consequence  of  the  empire  of 
the  territorial  sea,  is  the  right  of  permitting  or  pro- 
hibiting commerce,  or  the  residence  of  foreign  mer- 
chants in  the  country,  either  by  imposing  duties  on 
the  importation  or  exportation  of  goods,  allowed  to 


(24-S)  Henric.  Coccei.  Dlspiit.  de  Fund,  in  territ.  pot.  lit.  2, 
n.  14.  Eudem  polentas  exienditur  (juoque  ad  excvcitas  peje^rinos 
corumque  duces.  Knidi.  Dejurc  territ.  cap.  4,  n.  4.  Vattel,  Droit 
dcs  Gins,  liv.  2j  chap.  8,  §  103.  Pufil'ii.  dcjurc  nat.  ei  gent.  lib.  3, 
cap.  3,  §  10. 


248  THE  MARITIME  LAW        Part  L 


Commerce  and  fishing  may  be  regulated  by  laws. 


be  imported  and  exported,  or  by  inflicting  punish- 
ments on  those  who  who  import  or  export  prohi- 
bited goods.(259) 

2.  It  will,  perhaps,  be  objected,  that  if  you  ad- 
mit the  sovereignty  of  the  sea,  in  regard  to  fishing, 
it  is  not  allowable  to  restrain  the  freedom  of  navisra- 
tion  ;  since,  as  has  been  shewn  in  the  first  chapter, 
it  is  common  to  all  mankind,  and  inexhaustible  in 
its  use. 

3.  But  it  may  be  answered,  first,  that  even  the 
libsrtv  of  fishing,  could  not  be  allowed  without  the 
power  of  excluding  navigators  from  the  places  al- 
ready occupied ;  and  in  the  second  place,  highways 
may  be  considered  as  inexhaustible  in  their  use,  as 
the  sea;  yet  they  are  subject  to  the  laws  of  the 


(259)  Heineccius,  de  navibui  oh  vecturam  vetit.  mere,  commiss. 
Exercit.  8,  §  ^,  ibid.  Interest  sane  reipuhlicct  ne  promiscue  oinnibus 
negntiandi  hcenlia  detur.  Interest,  tit  ja7n  Aristoteles  Polit.  lib.  1 , 
cap.  6.  Mnnuit  legibus  definire,  quibuscum  communicare  cites  opor- 
teat,  cum  quibus  Jion  oporteui.  Interest,  ne  eiteri  coTunierciontm  ob- 
tentu  cites  dititiis  spoiient,  luxu  aliisque  vitiis  acprobis  injiciant  reni- 
publicam,  seqne  tel  ipsns,  tel  hostes  rebus  nostris  potentiores  opulen- 
tioresqjte  efficinnt.  Qnibus  omnibus  prospicere  imperantis  sine  dubio 
est  officium.  Marqiiardiis,  de  jure  mercat.  lib.  1,  cap.  \1 .  de  restric- 
tione  et  coarctationt  cnmmerciarwn,  itemqmjiire  prnhibendct  trans- 
tectionis  mercium.  After  liavin^  shewn  the  right  which  nations 
have  to  prohibit,  restrain,  or  augment  the  importation  or  exporta- 
tion of  goods,  he  details  the  regulations  made  on  this  subject  bv  the 
French,  Scotch,  Italians,  Fleming',  and  other  nations.  See,  Bodi- 
BII5,  de  republica.  lib.  I,  cap.  6  et  7.  Loccenius  de  jure  maritimo, 
lib.  1,  cap.  4,§  8.    Vattd,  Droit  des  Gens,  lib.  2,  ch.  2,  §  32,  et  53. 


Chap.  III.  OF  EUROPE.  249 


Rights  of  fishing  are  regiJated  by  general  laws. 


state,  and  sound  reason  evinces  that  they  are  free, 
precisely  because,  they  are  regulated  by  the  laws 
of  the  country. 

4.  True  civil  liberty,  is  that  which  secures  our 
lives  and  properties,  and  enables  us  to  make  use  of 
both  with  promptitude,  and  at  pleasure,  in  all  cases, 
not  contrary  to  the  public  welfare,  nor  to  our  own 
individual  happiness. 

5.  This  maxim  once  established,  it  follows,  that 
the  liberty  of  maritime  navigation  should  be  regu- 
lated by  those  usages  alone,  which  accord,  both 
with  private  interest,  and  the  public  good.  As 
there  is  no  civil  liberty  where  laws  are  not  strictly 
observed,  so  there  can  be  no  freedom  of  navigation, 
unless  it  be  governed  by  a  wise  system  of  rules,  and 
regulations:  if  crimes  on  the  sea  remain  unpunished, 
and  the  caprice  of  private  interest  obtain  the  ascen- 
dancy, they  will  soon  become  triumphant. 

6.  Though  the  right  of  fishing  may  be  considered 
as  one  of  the  consequences  of  maritime  empire  ;  yet 
the  prince,  or  sovereign  proprietor  of  the  territorial 
sea,  usually  reserves  to  himself,  the  great  fishery  on- 
ly, or  that  \s  hich  is  carried  on  at  stated  seasons  of  the 
year,  and  at  certain  places  ;  or,  in  short,  some  par- 
ticular kinds  of  fishing.  He  does  not  prohibit  that 
which  is  carried  on  for  the  use,  and  to  supply  the 
wants,  of  his  subjects.    He  even  permits  the  people 

Vol.  r.  li 


250  THE  MARITIME  LAW        Part  L 

Sovereigns  reserve  to  tlicmsclves  great  fishing  only. 

of  neighbouring  countries,  not  his  subjects,  to  fish, 
when  a  similar  liberty  is  granted  on  their  part. (260) 

7.  Sovereigns  are  not  in  the  practice  of  entirely  de- 
priving their  subjects  of  the  liberty  of  fishing,  given 
by  nature  to  all  mankind,  as  their  proper  right,  and 
as  a  means  of  subsistence.  This  is  agreeable  to  the 
observation  of  Seneca,(26l)  approved  by  St.  Am- 
brose,(262)  v^'ho  says,  that  the  exchequer  ought  not 
to  appropriate  to  itself  all  the  fish,  as  if  they  were  the 
productions  of  the  field.  For  this  reason,  great  fish- 
ing only,  is  ranked  among  the  regalia  of  the  sove- 
reign, and  thus  far  only  abridges  the  ancient  and  na- 
tural liberty  of  every  mantime  people. (263) 

8.  In  consequence  of  this  prerogative,  it  still  be- 
longs to  sovereigns  to  prescribe  the  manner,  kind, 
and  seasons,  of  fishing  in  the  seas  within  their  do- 


(260)  Selden,  Mare  Clausum,  lib.  2,  cap,  21.  Loccenius,  dejure 
jnaritimo,  lib.  1,  cap.  9,  n.  2.  Targa.  Pond.  mar.  cap.  4,  n.  3,  4, 
&c.  Stypman.  cap.  4,  n.  3,  &c.  "  Jnhumannm  a  quotidiana,  piscO" 
tura  vel  suhditos  vel  vicinos  in  vasto  mari,  licet  occupato  arcere." 

(261)  Seneca,  De  heneficlis.  lib.  4,  cap.  5  et  6,  ihi.  Aniinalia  omnis 
generis  alia  in  sicca  solidoque,  alia  in  Itumido  innascenda,  alia  per 
sublime  dimissa,  itt  omnis  rerwn  naturce  pars  tributiim  aliquod  nobis 
confer  ret. 

(262)  D.  Ambros.  Ilexanner,  lib.  5,  cap.  32,  ibid.  2ui  piscium 
jura  sicut  x^rnaculorum  conditione  tibi  scrtilii  suhjecia  commemo- 

rant. 

(263)  Cujac.  lib.  I,  Obserral,  ch^\).  2.  Sixtin.  de  Regaliis,  lib, 
2,  cap.  18,  n.  30. 


Chap.  III.  OF  EUROPE.  251 

Public  treaties  relative  to  fisheries. 
g-  •    ■       ■  -rr. 

minions.  This  has  been  done  by  the  different  states 
of  F^urope,  who  forbid  the  use  of  nets,  injurious  to  the 
muitipHLaiion  ol  fish. (264)  Ahnost  all  nations  have, 
in  this  respect,  special  laws  to  regulate  fishing,  and 
particularly  to  prohibit,  or  allow  it  to  foreigners. 
Hence,  public  treaties  have  been  made  on  this  sub- 
ject, for  the  benefit  of  nations;  such  as  that  in  1456, 
between  Henry  VH.  and  Philip,  archduke  of  Aus- 
tria. The  English  and  Dutch,  in  like  manner,  are 
allowed  to  fish  in  the  seas  of  Denmark  and  Norway : 
and  a  convention  has  been  entered  into  between 
France  and  England,  to  fix  the  times  and  places  of 
fishing.  As  to  the  pretended  right  of  the  states-gen- 
eral, mentioned  in  the  first  chapter,  article  V.  to  take 
fish  on  the  coasts  of  the  British  isles,  it  has  always 
been  a  subject  of  dispute  between  England  and  Hol- 
land.(265) 

9.  The  liberty  of  fishing  is  subordinate  to  that  of 
navigation,  because  the  interests  of  mankind  render 
the  latter  necessary  to  all,  while  the  former  concerns 
only  a  small  number  of  persons  who  are  devoted  to 
it.  For  this  reason,  in  the  latter  periods  of  the  Ro- 


(264)  See  my  discourse,  on  marint-  fisheries,  read  at  the  public 
sittings  of  the  academy  at  Marseilles,  the  25  th  July,  1802. 

(265)  Ordonnancede  France,  underthe  titles,  duRiragc,  des  Pares, 
et  des  Madragues,  and  Valin's  Commentaries.  Selden,  Maie  Claii- 
sum,  lib.  2,  cap.  21.  Stypman.  Jusjnarit.  cap.  4,  n.  11.  Sixtinus 
de  Regains,  lib.  2,  cap.  18.    Roussct,  InierHs  des  Prince,  p.  322. 


252  THE  MARITIME  LAW      Part  I. 


Fishermen  must  not  obsti-uct  navigation. 


man  power,  it  was  prohibited,  by  an  edict  of  the  pr<e- 
tor,  to  erect  any  establishment  in  the  sea,  or  on  the 
shores,  which  might  injure,  or  obstruct  naviga- 
tion.(266) 

10.  The  general  usage  on  this  subject,  Is  in  direct 
conformity  with  the  Roman  laws.  All  fishermen  on 
the  sea,  are  obliged  to  take  care  not  to  create  any 
impediment  to  the  passage  of  vessels  by  their  nets, 
seines,  and  fishing  machines,  under  the  penalty  of  be- 
ing condemned  to  make  good  all  damages.(267) 

(266)  Leg.  J,  §  17,  lib.  43,  tit.  12.  Digest,  defluminibus.  Leg. 
3.  Dig.ib.  nequid  in  loco  publi. 

(267)  Dig.  lib.  43,  tit.  14,  §  3  ef  7.  Ut  in flumine publ.  nutig. 
lice.  Leg.  24.  Dig.  de  Damno  infecto.  Capitoli  del  Re.  D.  Pedro 
d'/irragone,  dei22.  November  1340,  §24.  Ordon.  de  France,  art.  2, 
tit.  du  Rimge,  art.  11,  12,  et  13,  tit.  des  Pares,  art.  3,  4,  et  8,  tit. 
de  Madr agues,  dnAY^hn'^  Commentary.  Stracca,  de  Nuviga.  n.  10. 
Caepella  de  Sertit.  rustic,  prced.  cap.  27.  St)pman.  de  Jure  marit, 
cap.  5,  n.  3 1 .    Targa,  Pond.  Marit.  cap.  4,  n.  11 . 


CHAPTER  IV. 

OF  THE  ORIGIN  AND  PROGRESS  OF 
MARITIME  LAW. 


ART.  I. 

Of  Commerce  and  Navigation  y  as  sources  of  maritime 
Legislation. 

§  1.  1  HE  force  of  public  and  universal  opinion, 
which,  in  the  first  ages  of  the  world,  made  all  na- 
tions warlike,  compelled  them,  in  the  sequel,  to  be- 
come commercial.  Agriculture,  commerce,  and  the 
genius  of  industry,  at  length  united  to  engross  the 
empire  oi  talents.  The  love  of  conquest,  succeeded 
by  the  spirit  of  chivalry,  has  been  followed  by  the 
love  of  peace.  From  that  period,  legislators,  more 
just  and  more  humane,  have  respected  the  lives  and 
tranquillity  of  the  people.  Mankind  began  to  abate 
their  natural  ferocity,  and  to  temper  that  impetuous 
ardour  which  impelled  them  to  extend  the  bounds 
of  their  dominion.  An  universal  shock  was  ne- 
cessary to  Europe,  that,  at  the  sight  of  so  many  con- 
trasts, it  might  learn  the  theorems  of  political  econo- 
my, essential  to  public  happiness. (268) 

(268)  Montesquieu, Esprit des Loix,  liv.  20,ch.  l,liv.21,ch.  II. 


254  THE  MARITIME  LAW        Part  I. 


Importance  of  commerce  and  its  beneficial  effects. 

2.  The  enterprising  genius  of  man  found  a  fa- 
vourable occasion  to  direct  itself  towards  political 
interests,  and  it  thenceforth  became  more  bold  and 
energetic,  though  the  means  of  enriching  itself  ap- 
peared more  difficult  and  dangerous. 

3.  The  nations  of  Europe  saw  that  commerce 
was  the  only  means  of  maintaining  the  glory  and 
safety  of  the  state.  At  this  period,  commerce  was 
placed  in  the  rank  with  other  sciences,  and  the  his- 
tory of  the  progress  of  civilization,  knowledge, 
and  the  arts,  which  is  that  of  commerce,  was  re- 
garded as  an  essential  part  of  the  history  of  empires, 
and  as  comprehending  a  subject  the  most  extensive 
and  the  most  interesting  to  mankind.  Great  states 
soon  placed  all  their  strength  in  commerce,  as  the 
support  of  their  glory.  Governments  settled  their 
finances  on  a  foundation  more  just  and  secure  ;  trade 
became  a  source  of  wealth  to  individuals,  the  basis 
of  family  establishments,  and  the  only  means  of 
living  in  ease  and  splendour.  So  that  commerce, 
now  become  the  necessary  occupation  of  most  na- 
tions, has  been  the  only  means  by  which  they 
have  attained  that  height  of  prosperity  and  power 
which  they  enjoy. (269) 


(269)  "  Commerce/^  says  M.  Vital  Roux,  in  his  excellent  work, 
entitled,  De  I' influence  du  Gouvernonent  sur  la  prosperitc  du  Com- 
nierce,  p.  II,  "  supports  and  vivifies  all  the  branches  of  industry; 
"  it  sends  abroad  the  productions  of  the  nation,  to  exchange  them 
"  for  new  riches  ;  it  cherishes  the  enthusiasm  of  the  artist,  while  if 
"  enriches  and  facilitates  the  discoveries  of  the  learned." 


Chap.  IV.  OF  EUROPE.  255 


Futility  of  the  reasoning  of  philosophers  against  commtrce. 

4.  Let  US  leave  to  p.vc2f^(> -philosophers,  to  mo- 
dern declaimers,  who  wish  to  plunge  mankind  again 
into  that  barbarism  from  which  they  have  emerged 
by  the  aid  of  commerce,  to  affirm  that  it  destroys 
morals  and  the  political  strength  of  nations;  and 
that  the  vices  attached  to  prosperity,  have  supplant- 
ed those  virtues,  and  inestimable  benefits,  which 
result  from  the  simplicity  and  poverty  of  an  uncom- 
mercial people.  The  illustrious  author  of  Telema- 
chus  has  prepared  an  answer  to  these  absurdities. 
**  The  Tyrians,  "  says  he,  "  are  industrious,  patient, 
"  laborious,  sober,  and  economical ;  their  police  is 
"  exact,  and  the  most  perfect  harmony  exists  among 
"  them.  No  people  were  ever  more  sincere,  faith- 
*'  ful,  courteous,  and  obliging  to  strangers.  Such 
"  are  the  means,  without  seeking  for  other  causes, 
"  by  which  they  have  acquired  the  empire  of  the 
"  sea,  and  rendered  the  commerce  of  their  port 
"  so  extensive,  and  flourishing.  If  jealousy  and 
*'  faction  should  arise  amongst  them,  if  they  should 
"  become  addicted  to  pleasure  and  idleness ;  if  they 
"  should  sink  into  effeminacy  ;  if  the  great  should 

Huet  is  mistaken,  or  too  fond  of  antithesis,  when  he  says  that 
the  ancients  assigned  commerce  by  land  to  t!ie  golden,  and  mari- 
time commerce  to  the  iron  age,  as  actuated  solely  by  avarice,  and 
carried  on  by  an  unconquerable  temerity.  The  learned  M.  Peu- 
chet,  in  the  preliminary  discourse  to  his  Geogruphiquc  coinmercante, 
replies  to  this  oh,>ervation  in  the  following  terms :  "  Navigation  is 
*'  not  originally  the  effect  of  avarice  ;  it  arises  from  curiosity,  and 
"  commerce  has  turned  to  profit,  this  almost  miraculous  means  of 
"  communication  between  different  nations." 


256  THE  MARITIME  L AAV         Part  L 


Opinion  of  Fendon,  8ic.  as  to  commerce. — Anecdote  of  Rousseau. 


"  despise  labour  and  economy ;  if  the  arts  should  no 
"  longer  be  deemed  honourable ;  if  they  should 
"  cease  to  observe  good  faith  towards  strangers;  if 
"  they  should  violate,  in  the  least  degree,  the  laws 
"  of  free  commerce  ;  you  would  soon  see  them  fall 
"  from  that  power  which  is  now  the  object  of  your 
"  admiration." 

5.  A  modern  economist  has,  also,  successfully  re- 
futed this  anti-social  paradox,  so  often  repeated  in 
our  time. (270)    M.  Vital  Roux  thus  speaks  of  com- 


(270)  In  1777,  the  Academy  of  Mar';eille.s,  proj)oser!  the  follow- 
ing prize  question  :  "Quelle  a  eie  dans  tou%  les  temps,  I' influence  du 
conunerce  sur  l^espirt  el  les  vuturs  des  peuplta."  What  has  been,  in 
every  age,  the  influence  of  commerce  on  the  spirit  and  manners  ot 
nations  ?  How  could  a  society  of  learned  men,  established  in  a  city 
which  owes  every  thing  to  commerce,  support  anJ  crown  by  their 
sufFrages,  a  discourse,  the  object  of  which  is  to  prove,  by  specious 
sophisms,  and  ingenious  paradoxes,  that  commerce  has  always  en- 
ervated the  spirit,  and  depraved  tlie  morals  of  a  nation,  and  is,  in  its 
nature,  and  effects,  incompatible  with  great  virtues?* 


*  The  aiiAver  is  obvious.  Learned  men,  les  savans,  arc  often  lovers  of  pa- 
I'adox,  and  talie  more  pleasure  In  exercising' their  ingenuity,  in  defending  ab- 
si^u-d  opinions,  than  in  supporting  the  simple  ti'uth.  The  following  anec- 
dote v/ill  serve  to  illustrate  this  remark,  and  may  amuse  the  reader.  In  a 
convei'satlon  between  Marmontel  and  Voltaire,  of  which  J.  J.  Rousseau  was 
the  subject,  the  former  related,  what  Diderot  once  told  him,  of  tlie  pliiloso- 
pha'  of  Geneva.  "  I  was,"  says  Diderot,  "  a  prisoner  at  Vincenncs  ;  Rous- 
*'  seau  came  to  see  me.  He  had  made  me  his  Aristarchts,  as  he  expressed 
♦'  himself  One  day,  during  a  walk,  he  informed  me,  tliat  the  Academy  of 
•'  Dijon  had  just  proposed  an  iritcrcsting  question,  and  that  he  was  desirous 
*'  of  discussing  it.  The  question  was,  '  Has  the  restoration  of  the  arts  and 
"  sciences  contributed  to  refine  manners  ?'  Ze  retablissement  des  sciences  et 
"  des  arts,  a-t-il  contribue  a  epurer  les  mceurs  ?  '  Well,'  said  I,  '  which  side 


Chap.  IV.  OF  EUROPE.  257 


Commerce  promotes  the  liappincss  of  nutions. 


merce  :  "  Barbarous  nations,  whose  conquests  have 
"  so  often  laid  waste  the  fairest  portion  of  Europe, 
"  would  not  have  gone  so  far  in  search  of  un- 
"  known  wealth  and  happiness,  if  they  could  have 
"  drawn  them,  by  means  of  traffic,  to  their  own 
•'  homes.  If  commerce  had  penetrated  their  de- 
"  serts,  it  would  have  transformed  their  vast  torests 
*'  into  fertile  fields,  their  lonely  huts  into  pleasant 
"  towns,  and  their  country,  thus  endeared  to  them, 
"  would  not  have  been  abandoned  without  regret. 
*'  But  what  can  a  nation  do  whose  sole  employment 
"  is  the  chase,  that  serves  only  to  nourish  fero- 
"  city  ?  It  devours  itself,  or  vents  its  impatient  fury 
"  on  distant  objects.  Society  cannot  exist  where 
"  labour  is  not  necessary ;  idleness  is  the  nurse  of 
"  insubordination,  that  breaks  forth  within,  or  seeks 
"  for  gratification  abroad ;  for  he  who  creates  no- 
"  thing,  loves  only  to  destroy.  Commerce,  on  the 
"  contrary,  excites  a  love  of  labour ;  the  ease  which 
"  it  produces,  attaches  us  to  our  country,  and  thcre- 
"  by  invigorates  the  government ;  commercial  na- 


"  do  you  mean  to  take?'  lie  answered,  'the  aflu-mative.'  'That  is,'  I  rcpli- 
"  ed,  'the  asses'  bridge  ;  men  of  moderate  talents  will  take  tliat  putli,  and 
"  you  will  find  in  it  nothing  but  common  ideas,  whereas  the  otha-  side  pre- 
"  sents  a  new,  rich,  and  fertile  field  for  philosophy  and  eloquence.'  *  You 
"  arc  right,'  said  he,  after  a  moment's  reflection,  'and  I  will  follow  yoiu-  ad- 
"  vice.'  Thus,  from  that  moment,  his  part  and  his  mask  were  decided.  '  I 
"  am  not  at  all  surprised,'  said  VoUaire  ;  this  Tnan  is  factitious  from  head  to 
"  foot,  in  mind  and  soul.  But  he  has  played  well,  at  one  time  the  stoic,  at 
"  another  the  cynic ;  he  will  always  betray  himself,  and  his  masque  will  sti. 
"  fie  him."  See  Oe.^.vres  Posthumes  de  Marmontel,  tom.  2,  page  240, 

Paris,  (1804) T 

Vol..  I.-  K  k 


25S  THE  MARITIME  LAAV        Part  L 

— ii4 

Influence  of  commerce  on  the  conduct  and  manners  of  nations. 

"  tions  direct  all  their  attention  to  the  promotion  of 
"  industry,  because  it  produces  the  greatest  sum  of 
"  happiness.  Ambition,  which  impels  barbarous  na- 
"  tions  to  war  and  devastation,  inspires  a  commercial 
"  people  with  patriotism.  The  happiness  of  the 
"  one,  is  placed  in  destruction  ;  the  fehcity  of  the 
"  other  consists  in  the  prosperity  of  all." 

6.  As  soon  as  the  spirit  of  commerce  acquires 
strength  and  ascendancy  in  a  state,  a  new  genius 
is  seen  to  animate  its  government,  to  direct  its  al- 
liances, its  wars,  and  negociations.  The  most  de- 
cided proofs  of  this  are  exhibited  in  the  history  of 
the  Italian  states,  the  Hanseatic  league,  and  the 
cities  of  the  Netherlands,  during  the  period  which 
elapsed  from  the  ninth  to  the  sixteenth  century.  In 
proportion  as  commerce  spread  among  the  different 
nations  of  Europe,  their  views  were  directed  towards 
those  objects,  which  engage  the  attention  of  polished 
states,  and  to  the  adoption  of  the  manners  by  which 
they  are  distinguished. (270)  Commerce  does  not, 
therefore,  corrupt  manners,  continues  the  learned 
Peuchet ;  it  does  not  produce  a  declension  of  mo- 
rals 3  it  is  not  the  cause  of  those  vices  which  arise 
from  increased  population  ;  otherwise,  agriculture 
must  participate  in  the  anathema,  which  is  hurled 
exclusively  against  commerce,  since,  it  may  be  justly, 

(270)  See,  Robertson's  Introduction  to  the  History  ofChnrk.s  '/. 


Chap.  IV.  OF  EUROPE.  259 

Commerce  necessiirily  connected  witli  navipution. 

and  emphatically  termed,  the  nurse  of  the  human  race, 
and  the  chief  cause  ot  population.* 

7.  Commerce  soon  became  linked  with  naviga- 
tion, by  those  necessary  ties  of  correspondence, 
which  draw  towards  each  other  different  nations  and 
countries.  To  derive  advantage  trom  this  union,  it 
was  necessary  to  establish  a  communication  with 
the  different  parts  of  the  world,  which  could  not  be 
accomplished  without  inventing  an  art,  by  means 
of  which  seas  might  be  traversed.  Such  was  the 
origin  of  navigation. 

8.  Navigation  is  one  of  those  arts  the  commence- 
ment of  which  is  veiled  in  the  deepest  obscurity  j  arts 
which  are  the  tardy  fruits  of  necessity,  chance,  acti- 
vity, experience,  and  pride.  This  idea  is  most  hap- 
pily expressed  by  Lucretius,  in  three  lines  of  his 
immortal  poem.(271) 

Navigia  atque  agriculturas,  moenia,  leges. 


Usus,  et  impigrae  simul  experientia  mentis 
Paulatim  docuit  pedetentim  progredientes. 


Navigation  having  reached  a  certain  degree  of  per- 
fection, gave  wings  to  commerce  and  maritime  in- 


*  Some  new  and  interesting  views  of  the  necessary  connex- 
ion between  subsistence  and  population,  and  its  effects  on  the  hap- 
piness ol"  society,  are  to  be  tound  in  the  work  of  Mr.  Multhus,  en- 
titled, "  An  essay  on  Population,"  second  edition,  4to T. 

(27  1)  Lucretius,  dc  natura  rerim-,  lib.  5,  1.  1417 — See  ante  p.  2, 
and  3,  of  chapter  I. 


260  THE  MARITIME  LAW        Part  I. 

Rapid  progress  of  navigation  after  the  invention  of  the  compass. 

dustry.  Man,  disdaining  the  narrow  limits  of  his 
native  soil,  boldly  advanced  into  unknown  seas,  and 
with  the  help  of.  the  compass,  betore  invented,  but 
not  brought  into  immediate  use,(273)  found  out  a 
passage  to  the  East-Indies  by  the  Cape  of  Good  Hope, 
discovered  the  West-Indies,  or  America,  and  mea- 
sured the  circumference  of  the  globe,  not  to  gratify 
a  vain  curiosity,  but  to  extend  the  blessings  of  com- 
merce, to  procure  new  enjoyments,  and  satisfy  new 
wants. 

9.  The  mariner's  compass  changed  the  principles 
of  navigation.  Hitherto,  mankind  possessed  only 
gallies  with  sails  and  oars,  a  kind  of  vessel,  at  best 
adapted  only  to  keep  along  the  coast,  w'hich  they 
seldom  dared  to  quit  beyond  a  certain  distance.  Un- 
til this  period,  navigation  was,  according  to  the 
generally  received  opinion*,  no  more  than  a'sort  of 
coasting ;  but,  as  soon  as  the  use  of  the  compass 
waa  perfectly  understood,  its  progress  was  followed 
by  a  marine.  Men  began  to  brave,  on  the  high 
seas,  adverse  winds  and  tempests ;  to  learn  the 
course  of  the  monsoons,  to  avoid  rocks  and  currents, 
no  longer  to  fear  being  lost  when  out  of  the  sight 
of  land,  and  to  become  masters  of  that  terrible  ele- 
ment that  had  often  made  them  tremble.  Vessels 
of  a  different  size,  and  fit  to  navigate  in  every  lati- 
tude, soon  appeared  on  the  ocean.     Voyages  be- 

(273)  See  my  dissertation  sur  Vorigine  de  la  Boiissole,  in  Uie  in- 
troduction to  tlie  second  edition,  printed  at  Venice,  1797. 


Chap.  IV,  OF  EUROPE.  261 

Conquest  in  India  and  America,  distinguished  by  violence  and  cruelty. 

came  shorter,  transportation  safer  and  less  expensive, 
coinmunicatiun  was  every  where  opened,  commerce 
increased  and  assumed  new  splendour. 

10.  It  was  then  that  the  kingdoms  o£the  east  first 
saw  arrive  on  their  shores,  those  immense  European 
structures,  t'rom  which  issued  men,  who,  from  one 
hand,  shed  over  the  populous  tribes  of  India  the  be- 
neficent light  of  Christian  truth,  and  from  the  other, 
the  destructive  fire  of  war,  treachery,  and  vice. 
Then  did  the  Portuguese  zealot  erect  on  the  banks 
of  the  Ganges,  sumptuous  altars,  not  so  much  for 
the  adoration  of  the  Divine  Dispenser  of  all  good, 
as  of  their  idol,  interest.  Then  did  the  rich  mines 
of  Potosi  attract  to  the  continent  of  America,  those 
exterminating  expeditions,  made  by  the  Spaniards, 
in  the  name  of  the  God  of  Peace.  Then  did  the 
tolerant  Batavian,  just  free  from  foreign  chains,  ob- 
tain from  Indian  generosity,  in  exchange  for  his 
merchandize,  that  protection  under  which  he  form- 
ed batteries  to  thunder  in  the  ears  of  amazed 
and  too  credulous  hospitality.  They  tore  bt  vio- 
lence from  the  wretched  inhabitants  of  those  unfor- 
tunate countries,  what  they  would  have  freely  and 
liberally  granted.  Cupidity,  ever  unjust  and  atro- 
cious, made  them  forget  that  these  nations  were 
composed  of  men.  Instead  of  the  virtues,  they  were 
ofTcred  chains,  and  under  the  pretext  that  they  did 
not  follow  a  religion  of  wdiich  they  had  never 
heard,  they  were  murdered,  to  enrich  their  con- 
querors with  their  spoils.     M'hole  nations  were  ini- 


262  THE  MARITIME  LAW        Part  L 


Excesses  of  the  first  discoveries  cease. — New  wars. 


molated  for  their  fatal  contempt  of  the  true  faith,  or 
rather,  to  gratify  the  thirst  of  gold,  for  which  the  in- 
terest of  religion  was  but  a  specious  veil.  A  por- 
tion of  Europe  was  depopulated,  to  replace  these 
victims  of  avarice,  or  to  make  new  sacrifices.(274) 

1 1 .  At  the  cries  of  humanity,  the  carnage  ceas- 
ed, and  the  victors  contending  with  each  other  for 
the  spoils  of  the  vanquished,  engaged  in  their  quar- 
rels the  nations  whom  they  had  so  cruelly  treated. 
Yet  emulation  and  industry  were  reanimated. 
Those  nations  who,  instead  of  laws,  possessed  a  ma- 
rine, dreamed  of  nothing  but  the  establishment  of 
factories,  and  colonies  in  the  other  hemisphere.  The 
immense  seas,  which  nature  seems  to  have  placed 
between  countries  to  separate  the  different  nations 
of  the  world,  soon  became  the  means  of  their  re- 
union, and  of  that  mutual  commerce,  which,  by 
drawing  them  closer  to  each  other,  may  be  said  to 
make  them  one  nation. 

12r  Policy  and  jurisprudence  were  soon  engaged 
in  regulating  those  commercial  transactions,  the 
names  of  which  were  hardly  known ;  the  economy 
of  navigation,  which  they  meant  to  encourage ;  the 
dangers  and  perils  of  the  sea,  which  they  were 
anxious  to  diminish  or  prevent ;  the  safety  of  trans- 
portation,  which   might  be   assured,    became  the 

(274-)  The  recent  usurpation  of  the  kingdom  of  Mysore,  and  the 
death  of  Tippoo  Saib,  sufficiently  prove  that  men  are  always  unjust, 
when  actuated  by  cupidity. 


Chap.  IV.  OF  EUROPE.  26^ 

Commerce  and  navig-ation,  furnish  new  objects  of  policy  and  le^slatlon. 

most  interesting  and  profitable  objects  of  legislative 
policy ;  Qt  the  same  time,  that  the  formation  and 
support  of  harbours,  the  system  of  a  military  marine 
to  protect  the  activity  of  the  commercial  marine, 
the  facility  of  navigation,  the  construction  and  equip- 
ment of  vessels  of  every  kind,  attracted  the  regards 
and  fixed  the  attention  of  the  governments  of  Eu- 
rope. 

13.  The  science  of  lej^islation  has  embraced 
new  objects :  the  regulation  of  the  wages  of  la- 
bour, the  compensation  of  risks,  "the  indemnities 
in  cases  of  assurance,  and  in  contracts  of  bottomry ; 
contributions  for  losses,  happening  by  tempests  at 
sea,  in  cases  of  jettison,  or  waste  of  goods,  for  cap- 
tures of  vessels  in  time  of  war ;  in  a  word,  the  prin- 
ciples of  the  various  contracts  of  a  similar  nature, 
which  grow  out  oi  the  numerous  branches  of  in- 
dustry and  commerce,  increasing  every  day,  by  the 
vigilance  and  fostering  cares  of  government. 

14.  From  this  period,  maritime  commerce  has 
become  an  essential  object,  in  the  organization  and 
existence  of  political  bodies,  and  has  been  neglected 
in  no  wise  plan  of  legislation  j  since,  it  is  not  merely 
the  tie  which  unites  all  nations  and  climates,  but 
the  soul,  the  support,  and  wealth  of  the  state ;  for, 
by  familiarising  men  to  navigation,  it  forms  sea- 
men, and  facilitates  those  great  naval  enterprises 
which  open  the  way  to  that  maritime  power,  which 
at  the  present  day,  has  so  much  weight  in  the  ba- 
lance of  Europe, 


264  THE  MARITIME  LAW         Part  I. 


Increase  and  progress  of  maritime  laws  and  ordinances. 


15.  In  the  early  periods  of  navigation  and  com- 
merce, a  small  number  of  laws  were  composed, 
proportioned  to  the  extent  of  maritime  traffic ;  but 
navigation,  the  only  means  of  obtaining  superiority 
in  commerce,  having  greatly  increased  its  opera- 
tions were  multiplied,  as  the  wants  of  men  became 
more  numerous ;  the  marine  also,  having  put  more 
hands  to  work,  as  its  utility  and  benefits  accelerated 
its  progress,  a  greater  number  of  regulations,  and 
a  more  enlarged  system  of  legislation  became  ne- 
cessary. 

16.  Hence,  proceeded  the  great  multiplicity  of 
laws,  and  maritime  ordinances.  The  first  relate  to 
objects  common  to  all  nations,  and  are  called  the 
laws,  or  the  public  maritime  riglUs,  of  war  and 
peace;  the  second  comprehend  the  particular  in- 
terests of  each  nation,  and  are  denominated  the 
laws  and  rules  of  commercial  and  maritime  con- 
tracts. 

17.  Some  of  these  laws,  either  on  account  of  the 
veneration  entertained  for  the  ancients,  or  from  an 
opinion  of  the  superior  wisdom  of  those  who  framed 
them,  or  from  the  spirit  of  equity  which  pervades 
them,  or,  in  short,  on  account  of  the  power  and  re- 
putation of  the  nation  by  which  they  v^^ere  first  pro- 
mulgated, have  become  the  common  law  of  all  na- 
tions; such  are  the  Rhodian  and  Roman  laws. 
Others,  on  the  contrary,  have  remained,  as  at  first, 
mere  local  ordinances.    With  the  aid  of  history  and 


Chap.  IV.  OF  EUROPE.  265 


The  Rliodians  were  tlie  first  who  published  maritime  laws. 


criticism,  we  shall  rapidly  pass  over  the  periods  of 
their  origin,  and  show  the  progress  of  universal  ma- 
ritime law. 


ARTICLE  II. 

Of  the  Rhodian  Laws. 

§  1.  THE  Rhodians,  as  history  Informs  us,  were 
the  first  among  the  ancient  nations,  who  published 
maritime  laws.  The  practice  of  navigation,  and  the 
different  cases  which  arose  on  maritime  subjects,  ren- 
dered it  necessary  for  the  inhabitants  of  Rhodes  to 
compile  a  body  of  naval  laws,  which  breath  the  spi- 
rit of  justice  and  humanity.  Cicero  extols  the  disci- 
pline of  the  Rhodian  marine  to  the  highest  pitch  of 
glory,  and  declares,  that  in  his  time,  it  was  still  the 
object  of  admiration. (275)  Strabo  also  speaks  in 
praise  of  Rhodes,  which  he  found  governed  by  ad- 
mirable laws,  and  especially  those  relative  to  mari- 
time affairs. (276)  It  is,  doubtless,  a  noble  sight,  says 


(27.5)  Rhodiarum  usque  ad  nostrum  memoriam  disciplina  navalis, 
et  gloria  remansit. Pro  legeManiiia. 

(276)  Strabo  in  speaking  of  Rhodes,  lib.  14,  uses  the  following 
words :  Qxvfjixyn  Je  xjtt  n  tuvofj-nc,   koh  tTtjxtXnx  tt^oo-  rt  rm  aXXnv  woXj- 

Kxdn>i,  KxiPiifjLXiOiT  tysvsTo  ^jXi,  &c.    Tlieir  excellent  laws,  ami  the 
care  bestowed  on  every  part  of  tlieir  political  administration,  parti- 
cularly in  what  concerned  their  naval  affairs,  are  worthy  ofadmira- 
VoL.  I.  L  1 


266  THE  MARITIME  LAW        Part  I. 

The  Rhodians  were  favoured  by  Alexander  the  Great 

a  learned  writer  of  the  present  time,(277)  to  behold 
a  nation  more  occupied  with  commerce  than  con- 
quests, a  small  republic,  ruling  over  powerful  states, 
and  indebted  to  its  legislation  for  that  vast  influ- 
ence, which  draws  to  its  bosom  citizens  from  every 
part  of  the  world. 

2.  The  importance  of  these  laws,  so  often  cited 
and  mentioned  in  the  Roman  law,  has  induced  me 
to  have  recourse  to  historical  records  to  discover 
in  what  manner,  and  at  what  time,  they  were  adopt- 
ed by  Rome  ;  into  how  many  chapters  they  were  di- 
vided ;  what  were  those  which  Justinian  preserved ; 
and  which  of  them  still  exist  uncorrupted  and  en- 
tire. 

3.  During  the  war  of  Antigonus  against  Seleucus, 
and  his  allies,  the  valour  and  maritime  power  of 
Rhodes  were  displayed  to  the  greatest  advantage. 
Alexander  the  Great,  always  treated  them  with  dis- 
tinction ;  for  that  reason,  they  carefully  avoided  ta- 
king any  part  in  the  disputes  which  arose  between 
his  successors.  The  favour  shewn  them  by  these 
princes,  a  long  peace,  and  uninterrupted  commerce, 


tion  ;  by  these  the  Rhodians  maintained  the  empire  of  the  seas  for 
a  long  period,  expelled  the  pirates,  and  acquired  the  friendship  of 
the  Romans. 

(277)  M.  de  Fastoret,  in  his  excellent  Dissertation  siir  Vinfiuence 
des  his  inaritime.^  des  Rhodians,  which  gained  the  prize  of  theKoy- 
al  Academy  of  Inscriptions  and  Belles-Letttes,  in  1784-. 


Chap.  IV.  OF  EUROPE.  267 


Rhodians  faitliful  to  Ptolemy,  are  attacked  by  Demetiius. 


rendered  them  so  powerful,  that,  without  any  foreign 
aid,  they  undertook  to  rid  the  sea  of  pirates.  Their 
maritime  situation,  w  hich,  on  account  of  the  support 
they  derived  from  Egypt,  rendered  their  commerce 
with  that  kingdom  equally  necessary  and  advanta- 
geous, induced  them  to  remain  laithtul  to  king  Ptol- 
emy. Antigonus  wished  to  force  them  to  take  part 
with  him,  and  to  open  a  free  communication 
with  their  island,  during  his  war  against  Egypt.  They 
refused  this  request  with  firmness,  resolving  to  suffer 
every  extremity,  rather  than  to  abandon  their  ally. 
They  sustained,  in  consequence,  for  a  whole  year,  a 
most  dreadful  siege,  carried  on  by  his  son  Deme- 
trius, the  most  experienced  and  most  skilful  general 
of  the  age  in  the  attack  of  maritime  towns,  and 
whose  personal  talents,  in  this  conflict,  appeared 
more  formidable,  than  tlie  naval  forces  which  fol- 
lowed him,  consisting  of  above  four  hundred  sail  of 
gallics  and  other  vessels.  The  Rhodians  were  com- 
pelled at  last  to  make  peace  with  their  courageous 
adversary,  but  their  valiant  resistance  procured  them 
favourable  terms. 

4.  AVhen  Rome  was  preparing  to  conquer  the 
east,  the  Rhodians  dreading  the  victorious  ensigns 
of  that  enterprising  and  insatiable  republic,  gladly 
united  with  her  and  became  her  friend.  They  ob- 
served the  same  conduct  towards  Rome  as  they  had 
done  towards  the  successors  of  Alexander,  and  v/cre 
jealous  of  preserving  their  friendship.  This  alliance 
separated  them  from  their  connexions  with  Philip  of 


Q6S  THE  MARITIME  LAW        Part  I. 


Alliance  between  the  Romans  and  Rhodians. — Rome  adopts  theii-  laws. 


Macedon,  and  Mithridates,  which  were  less  to  their 
advantage.  It  was  at  this  time,  that  the  Romans  had 
an  opportunity  of  being  acquainted  with  the  mentor 
the  naval  jurisprudence  of  the  Rhodians,  which 
they  after  vsards  adopted.  Their  maritime  laws  were 
received  at  Rome,  not  as  other  Greek  laws  engra- 
ven on  twelve  tables,  and  which  were  engrafted  into 
the  Roman  code,  after  they  were  solemnly  re-en- 
acted by  the  people,  but  were  held  in  such  high  ven- 
eration, that  they  always  retained  their  original  name, 
without  being  inserted  in  the  twelve  tables.  They 
were  not  even  inscribed  in  the  books  of  the  prsetor, 
and  they  gave  rise  to  no  action  ;  but  the  opinions  of 
lawyers  were  founded  upon  the  Rhodian  law  dejac- 
tu,  although  it  was  not  clothed  with  the  sanc- 
tion of  the  people,  in  conformity  to  which  the  judges 
were  bound  to  decide.  The  lawyers,  Servius,  Labeo, 
Ofilius,  Alfenus  Varo,  and  Sabinus,*  are  the  first 


*  Servius  Sulpitius,  the  friend  and  companion  of  Cicero,  saw  the 
last  da^fs  of  the  repubhc.  Antistius  Labeo,  OfiHus,  and  Alfenus 
Varus,  lived  under  Aujj;»stus.  The  latter  was  a  shoemaker  of  Cre- 
mona, who,  discarding  his  occupation,  went  to  Rome  and  attached 
himself  to  the  school  of  Servius.  His  eminent  virtues,  and  great 
knowledge  of  the  law,  raised  him  to  the  consulship,  and  he  died 
loailed  with  public  honours.  Horace,  who  was  the  flatterer  of  Au- 
gustus, whom  Labeo  despised  and  hated,  as  the  destroyer  of  the  li- 
berties of  his  country,  thus  satirizes  him. 

Laheone  insanior  inter 


Sanos  dicatur. 

Hor.  lib.  I,  sat.  3. 


Chap.  IV.  OF  EUROPE.  269 


Aufmstus  sanctions  the  Rhodian  laws. 


who  have  taken  notice  of  these  laws;  and  whenSer- 
vius  gave  the  celebrated  answer,  that  will  be  men- 
tioned in  its  place,  the  Roman  lawyers  had  not  yet 
received  from  Augustus,  the  authority,  in  consequence 
of  which  the  judges  were  no  longer  allowed  to  evade 
the  provisions  of  the  Rhodian  law. 

5.  Augustus  was  the  first  who  gave  to  these  laws 
a  Roman  sanction.  He  wished  them  to  be  ob- 
served, in  the  same  manner  as  the  Julian  law,  pro- 
mulgated by  him.  This  appears  from  the  ninth 
law  of  the  Digest  ad  legem  Rliodiajii  de  jactu.^' 
The  emperor  Antoninus,  solicitous  to  determine  a 
maritime  controversy,  answered,  that  it  must  be  de-  \/ 
cided,  in  that  and  similar  cases,  according  to  the 
law  of  Rhodes,  the  mistress  of  the  sea,  whenever  it 
was  not  contrary  to  the  laws  of  Rome,  since  it  had 
been  so  settled  before  by  Augustus. 

To  Alfcnus,  the  poet  applies  the  lash  wilh  a  gentler  hand  : 
ut  Alfcnus  xaftr,  omni 


Jhjecto  instrumento  artis,  clausaque  taberna, 
Suior  erat ;  sapiens  operis  sic  optimus  oinnis 
Est  opijex,  sic  solus  rex. Ibid. 

Masurius  Sabinus  was  first  noticed  by  Augitstus,  and  lived  (o  be 
neglected  by  Adrian.  Gravina,  de  ortu  ct progrtssu  juris  cizilis,  lib. 
1,  §  64-,  67,  70,  72,  73,  80 T. 

*  Dig.  lib.  1+,  tit  2,  see  infra,  note,  the  latin  translation  of  the 
Greek  text  of  Volusius  Mecianus T. 


270  THE  MARITIME  LAW         Part  L 


Law  of  Mecianus  in  the  Digest 


6.  Whether  this  answer  be  nothing  more,  as 
Godefroi  supposes,  than  a  reflection  of  Volusius 
Mecianus,*  who  reports  the  decision  of  Antoninus, 
or  whether  it  be,   in  fact,   a  part  of  the  answer 

I  itself,  according  to  the  custom  of  the  emperors, 
i  to  recur  to  the  decrees  of  their  predecessors,  as 
Bynkershoek  maintains,  it  is  certainly  true  that  Au- 
gustus solemnly  recognised  the  Rhodian  law,  as  that 
of  Rome,  by  making  this  law,  which  possessed  at 
first  an  authority  merely  conventional,  vague,  and 
uncertain,  stable,  legal  and  authentic. 

7.  A  law  so  respectable,  which,  notwithstanding 
its  great  antiquity,  still  exists,  was  probably  re- 
ceived at  Rome,  not  only  on  account  of  what  re- 
lates io  jettlsoiJ,  made  by  a  ship  in  case  of  a  storm,  but 
to  all  otlier  events  happening  at  sea,  excepting  such 
as  had  already  been  decided  by  the  Roman  laws. 
The  same  law  that  has  preserved  the  rescript  of 
Augustus,  affords  grounds  to  believe  that  it  was 
adopted  entire  by  that  prince.  In  fact,  the  case  of 
vvhich  that  law  treated,  did  not  relate  to  jettison,  but 
to  shipwreck;  and  the  answer  of  Augustus,  which 
is  general,  and  attributes  to  the  Rhodian  law  the 
empire  of  the  sea,  proves  that  many  ot  its  regula- 
tions were  then  acknowledged  at  Rome. 

*  Volusius  Mecianus  flourished  under  Antoninus  Pins,  who  held 
his  opinions  in  t'a;;  highest  estimation.  Gravina,  ibid,  Ub.  1^  93.  ...T. 


Chap,  IV.  OF  EUROPE.  271 

Harmenopulus  and  Domitius  affii-m  tlie  authority  of  the  Rhodian  law  s. 

8.  Constanstine  Harmenopulus,  a  writer  of  the 
14th  century,  has  explained,  in  this  sense,  the  pro- 
vision of  this  law,  in  his  Proniptnan'mn,  tit.  2,  lib.  2.* 
He,  there,  proves  that  all  maritime  controversies 
ought  to  be  decided  by  the  regulations  of  the  Rho~ 
dian  laws,  in  all  cases  not  contrary  to  those  of 
Rome,  since  they  were  naval  laws ;  this  is  what  he 
establishes,  in  his  account  of  the  law  9,  just  men- 
tioned. Docimius,  or  Domitius,  in  his  book  deJu?'e, 
says,  that  all  maritime  affairs,  which  are  presented 
for  decision,  must  be  adjudged  and  determined  by 
the  Rhodian  laws,  whenever  they  are  not  contrary 
to  those  of  Rome ;  for,  besides  being  the  most 
ancient  naval  laws  extant,  the  greater  part  of  them 
are  excellent,  and  there  is  nothing  in  the  rest  de- 
serving of  censure. 

9.  The  celebrated  CujAsf  maintains,  that  in  all 
maritime  questions,  the  Romans  ought  to  adhere  to 

*  Vinnius,  Note  ad  Comment.  Peck,  ad  legem  Rhodiam,  p.  189, 
quotes  the  Greek  passage  from  Harmenopulus,  lib.  2,  tit.  1 1,  and 
refers  to  ihcjus  Grceco-Rom.  lib.  2,  of  Docimius.  He  remarks,  that 
the  Rhodian  Laws  were  considered  as  the  law  of  nations  through- 
out all  the  Mediterrantan T. 

f  Jacobus  Cujacius  was  born  October  1590,  at  Tolosa,  a  (own  of 
Biscay  in  Spain,  and  tlied  in  his  60th  year.  Gravina  remarks  of  him, 
that  had  he  lived  in  an  earlier  age,  lie  would  have  starved,  instead  of 
all  the  other  interpreters  of  the  Roman  law ;  "  Nt(jite  e/iim  aliyiiid  tg- 
7iorare  per  ilhwi,  ntque  sine  illo  discere  (juidquuTn  iicet."  De  ort.  et 
progjur.  civ.  lib.  I,  §  180 T. 


272  THE  MARITIME  LAW        Part  I. 


Opinion  of  Cujas  on  tlie  Rhodian  laws. — Other  opinions. 

the  laws  of  Rhodes,  if  there  is  no  particular  law  ex- 
isting to  the  contrary  ;  and  this  in  conformity  with 
the  directions  of  Augustus,  expressed  in  the  9th 
law  of  the  Digest,  above  cited.  He  adds  further, 
that  in  different  codes,  after  the  words  ad  legem 
Bliodiam,  is  read,  de  nautids,  and  he  affirms,  that 
the  Romans  borrowed  from  the  Rhodians  many 
laws  relative  to  navigation. 

10.  I  take  no  part  in  the  opinion  of  those  who 
maintain,  that  all  the  laws  of  Justinian  on  the  sub- 
ject of  shipwrecks,  and  other  maritime  affairs,  be- 
sides those  included  under  the  title  of  the  law  Bho- 
dia  de  Jactn,  are  taken  from  the  ancient  Rhodian 
Jaws,  at  least  as  to  the  substance,  though  expressed 
in  different  terms.  They  even  pretend,  that  the 
actio  exercitorial  is  derived  from  those  laws.  I  am 
not  disposed  to  disbelieve  this  fact,  so  much  am 
I  persuaded  of  their  real  excellence,  and  of  the 
veneration  in    which  they  were  held  by  the  Ro- 


*  In  the  Roman  law,  the  owner  or  employer  of  a  ship, 
Avas  termed  exerciioi-,  and  had  the  appointment  of  the  magis^ 
ter,  or  master,  who  had  authority  to  make  contracts  in  relation  to 
the  ship,  which  were  binding  upon  the  owner,  or  employer,  against 
whom  an  action  might  be  brought  on  such  contracts,  or  even  for 
the  faults  of  the  master,  which  \\ -dscaWed,  actio  exerciloria.  Dig.  lib, 
1 4-,  tit.  I ,  leg.  \,et  15.  Roccus,  de  naribus  et  naulo.  Not.  3,  et  1 1, 
&c.  Peckius,  ad  rem  nauticum,  p.  2,  et  69.  The  same  principle  pre- 
vails in  ttie  laws  ot  Englani,  and  other  commercial  countries.  Mol- 
loy,  de  jure  maritimo,  book  2,  ch.  2,  §  14.  Guidon,  ch.  IS,  art. 
\.  Pothier.  Chart,  part.  §  2,  art.  3 T. 


Chap.  IV.  OF  EUROPE.  273 


Did  J'istinian  adopt  tlie  whole,  ok  a  part  only  of  tlve  Rhodian  laws  ? 

mans ;  but  as  there  is  no  solid  reason  to  adopt  an 
opinion,  that  can  be  supported  only  by  conjecture, 
it  does  not  appear  right  to  decide  positively  on  a 
fact  so  uncertain,  when  it  is  my  business  to  weigh  the 
sentiments  of  others,'  the  better  to  explain  my  own; 
more  especially,  as  Justinian,  by  preserving  the 
name  of  this  law,  in  relation  only  to  a  single  sub- 
ject, de  jactu,  appears  to  have  intended  to  retain  the 
Rhodian  laws,  which  relate  to  that  matter,  and  not 
any  others. 

II.  Justinian  was  pleased  to  adopt  that  part  of 
the  maritime  jurisprudence  of  the  Rhodians,  that 
relates  to  goods  thrown  into  the  sea,  during  a  storm, 
or  in  case  of  imminent  danger  of  shipwreck,  and  to 
preserve  the  laws  with  their  name.  It  is  surprizing, 
after  the  praises  bestowed  by  him  on  these  laws, 
that  Justinian  should  have  wished  to  retain  only  one 
title  of  them,  as  if  he  had  rejected  the  rest,  or  that 
all  the  Rhodian  laws  should  be  comprised  in  a  sin- 
gle chapter. 

112.  Amidst  this  obscurity  of  facts,  and  the  silence 
of  ancient  writers,  I  do  not  hesitate  to  say,  that  among 
all  the  possible  events  incident  to  navigation,  that  of 
jettisoUy  being  the  most  frequent,  and  the  most  ge- 
neral, on  account  of  the  accidents  continually  hap- 
pening to  navigators,  Justinian  considering,  per-* 
haps,  that  this  matter  had  been  eminently  well  set- 
tled by  the  Rhodian  law,  adopted  and  preserved  it, 
Vol..  T.  M  m 


274  THE  MARITIME  LAW        Part  I. 


Rescript  of  Antoninus,  referring  to  tlie  Rhodian  law. 


with  the  intention,  that  all  other  cases  should  be  de- 
cided by  the  Roman  laws. 

13.  Yet  Justinian,  who  meant  to  preserve  only 
the  single  chapter  de  jacf.u,  has,  in  law  9,  intro- 
duced a  rescript  of  the  emperor  Antoninus,  who,  in 
a  case  of  shipwreck,  and  not  of  jettison^  refers  the 
affair  to  be  decided  by  the  Rhodian  law,  which  he 
wishes  to  be  followed  in  cases  where  there  was  no 
law  of  Rome  to  the  contrary. (27 8)  It  appears,  then, 
that  this  law  concedes  to  that  of  Rhodes  the  empire 
of  the  sea,  and  does  not  restrain  it  to  the  single  case 
o^  jettison  ;  but,  vs  ithout  taking  it  in  the  same  sense 
with  Tribonlan,*  who,  according  to  his  usual  tribo^ 


(278)  Leg.  9,  Dig.  (lib.  11-,  tit.  2.)  /.d  legem  Rhodiaju  de  jactu. 
Deprecatio  Eudiemonis  Nicomediensis  ad  Antnnlnum  hnperatnrum. 
"  Domine  hnperator  Antonine,  naufragiu7n  in  Jtalicefacientes,  direpti 
swnus  a  pu'.di ranis  Cyr lodes  Jnsulas  habitaniibus."  Respondit  Auto-' 
ninus  Eudivmoni.  "  Ego  quidem  Mundi  Dominus,  lex  autem  maris 
lege  id  H/todia,  quK  de  rebus  nnidicrs  pr(cscripta  est,  jiidicetiir,  qua- 
ienus  nulla  nn.strarum  legum  adiersatur.  Hoc  idem  Divus  qiioque  Au- 
gustus judicurit." 

*  Tribonian,  the  favourite  and  oracle  of  Justinian,  was  employed, 
with  nine  other  lawyers,  by  that  emperor,  to  digest  the  immense 
mass  of  Romaic  laws  into  one  code;  which  was  accomplished  in 
three  years.  This  extraordinary  man,  for  profound  and  various 
learning,  a^  well  as  for  his  avarice  and  meanness,  is  compared  by 
Gibbon,  to  Lord  ^Acon.— Gibbon's  Decline  and  Full,  ch.  44.  Tri- 
bonian has  been  greatly  censored  by  modern  writers  and  interpre- 
ters of  the  Roman  law,  for  the  choice  he  has  made  for  the  Digest 
aiiu  Code  ;  and  ail  the  errors  and  contradictions  to  be  found  in  the 
Pandects,  the  Institute  and  Code,  the  faults  of  arrangement,  and 


Chap.  IV.  OF  EUROPE.  275 


Tnbonian's  conduct  as  to  this  law. — Cicero  refers  to  the  Rhodian  law. 


m'a/iis?n,  appears  to  have  inserted  the  law  of  Me- 
cianus  vvitlu  ut  attending  to  the  title  under  whicii  he 
placed  it,  it  may  be  said,  that  this  lawyer,  in  order 
to  give  an  idea  of  the  Rhodian  law,  from  which  he 
has  extracted  ten  laws,  wished  to  make  it  appear, 
that  t!ie  regulations  ot  that  law,  as  well  as  its  name, 
had  bcvn  adopted  by  Augustus,  and  by  Antoninus. 
Justinian,  for  that  reason,  transmitted  it,  in  part,  to 
posterity.  Certain  it  is,  that,  as  far  as  the  title,  ad 
le'^cm  Rhodiam  de  jadu,  appeared  new  and  curious, 
it  would  have  remained  obscure,  if  the  9th  law,  which 
forcibly  explains  it,  had  not  been  inserted. 

I'k  The  ancients  have  spoj^en  of  the  Rhodian 
laws,  and  liave  pointed  out  some,  which  arc  not  to 
be  found  in  the  Roman  compilation.  Cicero  men- 
tions a  case  decided  by  those  laws,  according  to 
which,  if  a  ship  of  war^  is  found  in  port,  it  ought  to 
be  confiscated.  Men  ot  learning  have  thought  this 
a  case  imagined  merely  for  the  sake  of  declamation. 


other  defects,  are  charged  upon  him  alone.  Hottoman,  the  most 
violent  of  his  censurers,  says  he  poisoned  and  corrupted  every  an- 
cient law  that  he  touched  ;  and  Gibbon  observes,  that  "  llie  favour- 
ite of  Justinian  was  fearful  of  encountering  the  hght  of  freedom, 
and  the  gravity  of  the  Roman  sages."  He  is  praised  by  Cujacius, 
and  defended  by  Gravina:  De  ortu  et  progressii  juris  civilis,  lib. 
],  §  137 T. 

*  Nan's  rostraia,  so  called  from  having  its  stem  covered  with  a 
sharp  beak  made  usually  of  brass.  The  words  of  Cicero  are.  Lex 
est  apud  liliodios,  ut,  si  qua  rostrata  in  porta  navis  dtprehensa  sit, 
publicetur.     Dclnvcntione,  lib.  2,  cli,32 T. 


276  THE  MARITIME  LAW      Part  L 

The  Rhodian  naval  laws,  the  most  ancient  which  aic  known. 

Strabo  speaks  of  another  law  of  Rhodes,  that  con- 
demned to  death  whoever  dared  to  go  within  certain 
naval  arsenals  in  that  island,  which  were  impene- 
trable to  the  common  people  ;(279)  but  he  does  not 
mention  the  reason  why  they  guarded,  with  such 
severe  vigilance,  some,  and  not  all  of  their  arsenals. 

15.  It  is  generally  agreed,  that  the  Rhodian  are 
the  most  ancient  maritime  laws,  of  which  u  e  have 
any  knowledge  ;  it  is  not  known,  whether  the  Phoe- 
nicians, the  Carthaginians,  and  other  nations,  for- 
merly celebrated  for  their  commerce,  have  ever 
published  any.  The  ancient  historians  have  pre- 
served no  trace  of  them,  as  they  have  of  the  Rho- 
dian laws.  Perhaps,  as  the  Phoenicians,  in  the  flou- 
rishing periods  of  the  Roman  power,  had  no  longer 
any  great  reputation  or  commercial  credit ;  and 
Rome,  not  considering  herself  safe,  while  the  walls 
and  name  of  Carthage  existed,  she  neither  deigned, 
nor  wished  to  preserve  the  maritime  laws  of  those 
two  nations,  even  supposing  any  to  have  been  pub- 
lished by  them. 

16.  The  Rhodian  laws,  therefore,  whatever  may 
be  the  period  of  their  publication,  are  the  fountain 

(279)  Strabo  Geograph.  lib  14,  Tjva  xai  y.^vxix  nv,  y.ai  ocxo^^rt^a, 
Tcto-  TToPvAots"  r-jj  ^£  /CKTOTTrjo-avTJ  11  Ta^EXGovT*  EK7i',  Soivaroc-  w^jct-te  *j  (r.^iOi,. 
Some  things  in  their  nav) -yards  were  kept  concealed,  and  were 
forbidden  to  be  seen  by  the  common  people;  and  if  any  person  was 
found  inspecting  them,  or  inside  of  the  works,  he  was  immediately 
pvinished  with  death. 


Chap.  IV.  OF  EUROPE.  277 


Scardius  and  others  publish  laws  iindtr  the  title  of  Rhodian. 

of  maritime  jurisprudence.  Tiiere  is  no  foundation 
for  the  supposition  of  P.  Tournier,  in  his  treatise 
on  Hydrography,  book  5,  chap.  4,  that  they  were 
published  at  the  time  when  Jehosaphat  reigned  in 
Judaea,  that  is,  seventy  years  after  Solomon. 

17.  There  exists,  at  the  present  day,  a  collection 
of  maritime  laws,  under  the  title  of  the  Bhodian  laics, 
published  at  Basle  in  15G1,  by  Simon  Scardius,  with 
the  laws  relating  to  husbandry  and  military  affairs,  by 
Justinian  II,  and  afterwards,  at  Frankfort,  in  1596, 
by  Leunclavius  and  Marquard  Freer.  It  is  to  be 
found  at  the  end  of  the  second  volume  of  the  Greek 
and  Roman  law,  obtained  from  the  library  of 
Francis  Pithou.  The  title  of  this  collection  im- 
ports, that  they  were  taken  from  the  11th  and  14  th 
books  of  the  Digest,  without  mentioning,  however, 
whether  it  is  the  Digest  of  Justinian,  or  that  of 
the  ancient  Rhodian  laws,  divided  into  different 
books. 

18.  Such  is  the  collection,  known  at  this  time, 
under  the  name  of  Rhodian  laics.  From  a  regard 
to  that  title,  so  respected  by  the  ancients,  they  have 
been  considered  as  the  first  maritime  laws.  They 
have,  however,  been  variously  considered  by  dif- 
ferent learned  men  ;  some  regarding  them  as  genu- 
ine, others  condemning  them  as  spurious  and  apo- 
cryphal. Simon  Scardius,  by  whom  they  were  first 
published,  considered   them   as   authentic.      Cujas 


278  THE  MARITIME  LAW        Part  I. 


Opinions  of  various  ^STiters  as  to  the  Rhodian  laws. 

cites  them  as  Rhodian  laws.  Leunclavius*  and 
Marquardijs  Freer, f  a  short  time  after  .^ards,  ex- 
press no  doubts  concerning  them.  They  are  also 
comprised  among  the  Basilica,'^  published  with 
notes  by  Ch.  Annibal  Fabrot,§  at  Paris  in  1648. 
(tom.  6,  \iv.  3)  tit.  8.)  Selden,  in  his  work,  de  do- 
minio  mariSy  in  extolling  the  Rhodians,  and  their 
naval  laws,  says,  they  were  in  credit  at  Rome,  in 
the  time  of  Tiberius,  and  cites  the  Greek  and  Ro- 
man law  of  LeunclaviuSj  which  is  the  compilation 
just  mentioned. 

*  John  Leunclaviiis,  a  native  of  Westphalia,  died  at  Vienna,  in 
1593,  at  the  age  of  sixty  years.  He  was  of  a  noble  family,  and  pos- 
sessed great  learning.  He  published  many  works,  among  which 
are,  an  abridgement  of  the  Basilica,  and  a  volume  entitled,  DeJure 
Gr(£co-Ro/naiw T. 

f  Marquardus  Freer,  was  born  at  Augsburg,  in  Swabia,  in  1565. 
He  studied  under  the  celebrated  Cujas  ;  and  died  in  16 1 4.  He  was 
distinguished  for  various  learning,  and  his  acquaintance  with  polite 
literature.  His  works  are  voluminous,  and  some  of  them  much  es- 
teemed  T. 

t  Basilica.  The  Pandects^  Code,  and  Institutes,  were  translated 
into  Greek,  and  abridged  into  forty  books,  by  Basil  I.  A.  D.  S8S, 
which  became  the  law  of  the  eastern  empire,  to  the  entire  ex- 
clusion, of  the  latin  codes  of  Justinian  ;  to  sink  the  name  of  that 
emperor,  and  elevate  his  own,  Basilgave  them  thename  o^ Basilica. 
Twenty  books  were  afterwards  added  by  his  son  Leo  VI.  and  the 
whole  have  been  known  by  tlie  Greek  appellation.  Gravina,  De 
ortu  et  progressu  juris  civilis,  lib.  1,  §  138.  Gibbon's  Decline  and 
Full,  &c.  book  48.    See  article  6,  post T. 

§  Charles  Annibal  Fabrot,  was  born  at  Aix,  in  France,  in  1580, 
and  filled  the  chair  of  professor  of  law,  at  the  university  in  that 


Chap.  IV.  OF  EUROPE.  279 


J.  Godefroi  and  Vinnius  speak  of  the  Rhodian  laws. 


19.  James  Godefroi,  in  his  work,*  entitled,  dc 
domiido  maris,  supported  by  the  9th  law  de  jactiiy 
labours  more  than  all  the  rest  to  give  them  authori- 
ty, and  to  exalt  their  merit. 

20.  Arnoldus  Vinnius,f  who  published  with  so 
much  reputation,  commentaries  on  Pctrus  Peckius,J 
on  the  titles  of  the  Digest  and  Code,  which  treat  of 
maritime  subjects,  omitted  in  the  first  edition,  printed 
at  Leyden,  in  1647,  what  is  found  in  a  second,  print- 
ed at  Amsterdam,  in  1688.  In  this  last  edition,  he 
has  inserted  the  naval  law  of  the  Rhodians,  which 
concludes  the  second  volume  of  the  Greek  and  Ro- 


place.  He  was  a  man  of  immense  erudition.  His  translation  of 
the  Basilica  filled  seven  volumes  folio,  and  he  compo'^ed  a  great 
many  works  besides.  He  published  a  revised  and  corrected  edi- 
tion of  the  works  of  Cujas,  with  learned  and  curious  notes,  in  ten 
vols.  fol.   He  died  in  1639 T. 

*  The  two  Godefroys  of  Geneva,  were  men  of  great  learning. 
The  elder  made  numerous  notes  to  the  books  of  the  civil  law,  but  is 
reganu'd  by  Gravina  as  a  man  of  more  learning  than  acuteness. 
The  younger,  lor  abstruse  erudition,  choice  knowledge  of  the  law, 
and  soun  i  juiigment,  is  ranked  among  lawyers,  as  second  only  to 
Cujas.  Gravina,  lib.  1,  §  183 — See  note  ante,  page  215 T, 

f  This  distinguished  man,  so  well  known  for  his  admirable  com- 
mentaries on  tlie  Instituies  of  Justinian,  was  born  in  1387.  He  was 
professor  of  law  at  Leyden,  and  died  in  1657 T. 

♦  Peter  Peckius,  was  a  native  of  Ziriczee,  a  town  in  the  province 
of  Zealand,  and  died  in  1589,  at  the  age  of  60.  He  was  professor 
of  law  for  40  years  in  the  university  of  Louvaine,  in  the  Austrian 
Brabant T. 


280  THE  MARITIME  LAAV        Part  I. 


Opinion  of  Vinnius  and  others  as  to  the  Rhodian  law. 


man  law,  and  he  adds,  that  he  believes  that  he  has 
thereby  given  greater  value  to  his  work,  because,  in 
that  collection,  are  to  be  found  many  excellent 
things,  very  useful  to  be  known  by  those  who  treat 
of  maritime  affairs.  He  affirms,  afterwards,  that 
Peckius  was  unacquainted  with  them,  and  that  this 
treasure  was,  perhaps,  still  buried  in  the  library  of 
Francis  Pithou.  He  had,  notwithstanding,  before 
him,  another  Greek  manuscript,  which  contained  a 
certain  naval  law  of  the  Rhodians,  given  to  him  by 
William  Goesius,  and  who  had  taken  it  from  the 
library  of  Nicolas  Heinsius ;  but  this  manuscript,  in 
several  places,  differs  from  that  of  Pithou's ;  and 
Vinnius  has  not  tailed  to  point  out  the  difference. 

21.  James  Andrew  Crusius,  maintains  the  au- 
thenticity of  these  laws;  and  Gravina,*  following 
the  opinion  of  Godefroi,  adopts,  without  hesitation, 
every  thing  which  is  said  in  the  preface,  and  in  the 
collection,  which  bears  the  name  of  Rhodian  laws. 

22.  Francis  Baldwin,  In  his  commentary  on  the 
Voconian,  Falcidian,  Julian,  Papia-Poppean,  Rhodian, 
and  Aquilian  laws,  and  upon  the  Miidan  jurispru- 

*  John  Vincent  Gravina,  was  born  at  RoglianOj  in  the  kingdom 
of  Naples,  in  1 664-,  and  died  at  Rome  in  I' 18.  He  was  a  poet, 
orator,  and  man  of  letters,  as  well  as  a  learned  lawyer.  He  was  the 
friend  and  patron  of  literary  m<?n,  particularly  the  celebrated  Metas- 
tasio.  His  law  tracts  are  contained  in  two  volumes,  4to.  An  edi- 
tion of  all  his  works  were  published  at  Leipsic  in  1737,  in  4to.  with 
the  notes  of  Mascovius T. 


Chap.  IV.  OF  EUROPE.  281 


Opinions  of  A.  Augustin  and  of  Cujas  on  the  Rhodian  laws. 


dencCy  printed  in  1559,  at  Basle,  in  the  life-time  of 
the  author,  says,  that  he  had  seen  several  commen- 
taries in  Greek  manuscript,  entitled,  Rhodian  laws ; 
but  that  they  were  an  indigested  mass  of  things  rela- 
tive to  navigation  ;  and  by  this  single  expression  he 
gives  his  opinion  on  the  laws,  which  pass  under  the 
title  of  Rhodian. 

23.  Anthony  Augustin,*  in  his  treatise  de  legibus 
et  senatus  consultis^  printed  at  Paris,  in  1594,  eight 
years  after  his  death,  also,  suspects  these  laws  to  be 
spurious;  yet  he  remarks,  that  there  was  preserved 
in  the  library  of  St.  Marc  at  Venice,  belonging 
to  Cardinal  Bessarion,  an  abridgment  of  the  laws 
of  the  emperors  Leo  and  Constantine,  in  the  begin- 
ning of  which  are  some  chapters,  which  speak 
of  the  Rhodian  law,  a  part  of  which  is  found  at 
the  end  of  the  eleventh  book  of  the  Promptu- 
arium  juris  of  Harmenopulus.  He  adds,  that  af- 
ter the  maturest  reflection  on  another  book  he  had 
seen  at  Rome,  he  discovered  that  that  production 
was  spurious,  and  the  work  of  some  Greeks. 

24.  Cujas,  in  his  commentary  on  the  second  law 
ad  legem  Rhodiam  de  jactu^  says  simply,  that  they 
have  not  comprised  in  that  collection  the  ancient 
Rhodian  laws  ;  but  only  the  new.    This  great  man, 

*  Ant.  Augustin, a  distinguisiicd  lawjer  nnd  sla  esnian,.  «!<.-^cend- 
ed  from  illustrious  ancestor.s  was  born  at  Sarrrigo«;sa  in  Spain,  and 
died  in  1586,  at  the  age  of  69.  Gravina,  lib.  1,  §  174 T. 

Vol.  I.  Nn 


282  THE  MARITIME  LAW        Parti. 

Opinions  of  B}T»kershoek  and  Van  Schclling  on  the  Rhoian  laws. 

perhaps,  thought  that  the  laws  in  this  collection, 
were  not  worthy  of  those  Rhodians,  so  extolled  by 
antiquity,  nor  of  Rome,  who  never  adopted  any 
thing  that  was  not  excellent.  He  has  not  ventured 
to  declare  himself  openly  against  these  laws ;  but  by 
saying  that  they  were  the  new  Rhodian  laws,  with- 
out adding  any  thing  in  their  favour,  he  shews  his 
own  opinion  of  their  merit,  while  he  leaves  us  in 
obscurity  as  to  the  principal  point. 

25.  At  the  commencement  of  the  18th  century, 
Cornelius  Van  Bynkershoek,  who  has  rendered  so 
much  service  to  universal  jurisprudence,  undertook 
to  explain  the  ninth  law,  ad  legem  Rhodiam  de  jacfu, 
above  cited.  He  demonstrates  the  falsity  of  these 
laws ;  but  he  supposes  his  readers  to  possess  so  much 
information,  that,  if  they  have  not  obtained  a  know- 
ledge of  them  from  other  sources,  it  is  impossible  to 
comprehend  the  refutation  made  by  him,  in  the  se- 
venth chapter  of  his  work.* 

26.  Pierre  Vander  Schelling  examined  the  Rho- 
dian laws,  in  a  book  which  he  published  on  that 
subject,  in  1722.  He  declares,  that  he  does  not 
pretend  to  weigh  the  merit  of  them,  nor  to  decide 
whether  they  are  the  work  of  some  Greek,  or  are 

*  Bynkershoek,  quoting  the  remark  of  Baldwin  on  this  collec- 
tion, wlio  terms  it,  incondita  farrago  de  rebus  nauticis,  ddds,  et  sane 
•vix  quUqnam  proftras,  quod  vuii^is  est  inccnditutfi.  De  lege  Rhodia, 
cap.  8 T. 


Chap.  IV.  OF  EUROPE.  281 


Heineccius  declares  the  Rliodian  laws  to  be  spurious. 

goods  taken  from  the  same  warehouse,  with  the 
laws  concerning  husbandry,  which  [ass  under  the 
name  of  Justinian.  He  does  not  venture  to  decide, 
whether  it  is  a  new  body  of  Rhodian  laws,  pub- 
lished instead  of  the  ancient,  as  Cujas  asserts,  or 
whether  the  preface  only  has  been  taken  from  the 
genuine  naval  Code  of  Rhodes,  and,  after  its  loss, 
attached  to  a  work  substituted  in  its  place,  under 
the  name  of  the  Rhodian  laivs. 

27.  After  Bynkershoek  had  declared  himself 
against  these  laws,  other  publicists,  who  were  ac- 
quainted with  the  depth  and  solidity  of  his  opinions, 
ranged  themselves  on  his  side,  or  spoke  of  the  col- 
lection in  doubtful  terms.  At  length," the  very  learn- 
ed Heineccius,  in  his  work,  entitled,  Ilisloria  jiu- 
ris  civilis  Roman.  Germanic,  supported  by  the  opi- 
nion of  Bynkershoek,  openly  declared  against  the 
body  of  Rhodian  laws,  and  against  the  authenticity 
of  the  preface,  by  shewing  that  it  does  not  agree 
with  history  ;  and  he  expresses  his  astonishment, 
that  so  well  informed  a  lawyer  as  Godefroi,  had  not 
discovered  the  imposture.  Yet  in  his  commentary 
on  the  title  of  the  Pandects  ad  legem  R/iodiam  de 
jactUy  he  appears  to  have  acknowledged  this  very, 
preface  as  genuine,  and  original,  an  opinion  he  is 
very  far  from  entertaining  in  his  history. 

28.  The  celebrated  Giannone,  in  his  excellent 
work,  Istoria  civile  del  regno  de  Napoli,  falls  into  a 
multitude  of  errors,  in  speaking  of  these  laws.     In 


284  THE  MARITIME  LAW        Part  L 


Mistakes  of  Giannone  as  to  the  Rhodian  laws. 


book  2,  ch.  6,  §  2,  he  relates,  that  the  RhodiLn 
laws  were  so  celebrated  at  Rome,  that  the  emperors, 
Tiberius  and  Hadrian,  and  some  of  their  successors 
approved  and  sanctioned  them  by  their  publication, 
that  from  thence  is  derived  the  Rhodian  law,  ex- 
tracted frv)m  the  eleventh  book  of  the  Digest  found 
in  the  library  of  Francis  Plthou,  where  it  remained 
a  long  time  buried  in  obscurity.  Thus  far,  this  au- 
thor commits  no  material  fault,  since  he  only  de-  Ij 
ceives  himself,  in  taking  for  genuine  the  trash  of 
naval  laws,  which  since  his  time  have  lost  all  credit. 
Afterwards,  in  citing  the  eleventh  book  of  the  Di- 
gest, he  refers,  in  the  margin,  to  the  title  ad  legem 
Bhodiam  de  jactu^  inserted  in  the  fourteenth  book, 
(tit.  2,)  of  tht  Digest  of  Justinian,  to  another  de 
exercitoria  actione^  and  to  the  title  Nautce,  caiipones, 
stabularii^  placed  in  the  same  book,*  and  to  others 
which  are  not  found  in  the  Rubrick  of  the  eleventh 
book. 

29.  This  error  of  Giannone  would  be  more  ex- 
cusable, if  he  had  not  added,  that  when  the  seat  of 
the  eastern  empire  became  fixed  at  Constantinople, 
and  this  city,  washed  on  three  sides  by  the  sea,  had 
.suggested  to  its  sovereigns  the  idea  of  placing  their 
greatest  strength  in  naval  armaments,  the  last  of  the 
emperors  thought  fit  to  publish  many  naval  laws,  col- 


*This  is  either  an  error  of  the  press,  or  of  Azuni,  for  the  title 
nautif,  caupones  et  stabularii  is  placed  in  book  4,  tit.  9,  of  the  Di- 
gest  T. 


Chap.  IV.  OF  EUROPE.  285 

Observations  of  M.  Pastoi-et  on  tlie  Rhodian  laws. 

Jecled  afterwards  in  part  byLeunclaviusandPeckius, 
and  in  part  by  Vinnius.  But,  I  ask,  by  which  of 
these  last  emperors  of  the  east  was  the  collection  of 
naval  laws  made,  and  what  were  those  collected  by 
the  three  authors  cited  ?  Leunclavius  published  the 
body  of  ancient  Rhodian  laws,  as  taken  from  the 
library  of  Pithou,  with  a  preface,  in  which  nothing 
more  is  said,  than  that  they  were  confirmed  by  the 
Roman  emperors  Tiberius  and  Severus ;  and  this  is 
the  collection  which  has  been  taken  from  the  ele- 
venth book  of  the  Digests,  of  which  he  had  just  be- 
fore spoken,  as  a  different  thing :  Peckius  has  col- 
lected nothing ;  but  has  merely  commented  on  the 
titles  in  the  Digest  and  Code,  that  relate  to  naviga- 
tion, u  ithout  ever  having  seen  the  Rhodian  naval 
laws,  which,  probably,  as  Vinnius  observes,  and  as 
I  have  before  remarked,  were  yet  concealed  in  the 
library  of  Pithou.  In  a  word,  Vinnius  has  only  en- 
riched the  work  of  Peckius  by  notes,  and  with 
learned  observations,  and  reprinted  the  law  of  the 
Rhodians,  without  mentioning  any  law  of  the  last 
emperors  of  the  east  on  the  subject.     ^ 

30.  The  learned  M.  Pastoret,  in  analysing  the 
Rhodian  laws,  has  confined  himself  to  the  extract 
from  them  given  by  Leunclavius,  in  his  Jus  Greco- 
Romanum^  by  Morisot,  in  his  work  entitled,  Orbis 
Marifimns,  and  by  Targa,  at  the  end  of  his  treatise 
under  the  title,  Pondera::.ioui  sopra  le  contrattazione 
mariltime.  These  laws,  he  adds,  are  nothing  but  an 
assemblage  of  those  found  in  the  Digest,  and  which 


286  THE  MARITIME  LAW        Parti. 

Remarks  on  the  title  or  preface  to  the  Rhodian  Code. 

the  emperors  had  successively  put  together,  to  com- 
pose their  maritime  jurisprudence ;  for  it  has  been 
sufficiently  proved,  continues  he,  that  the  laws  of 
Rhodes,  as  they  were  actually  framed,  have  not 
come  down  to  us. 

31.  After  having  seriously  meditated  on  the  va- 
rious opinions  which  have  been  quoted,  I  shall  take 
the  liberty  to  make  some  reflections,  for  the  purpose 
of  showing  the  spuriousness  of  this  Code,  and  to 
prove  that  it  does  not  contain  the  genuine  Rhodian 
laws. 

32.  This  collection  is  said  to  have  been  taken  from 
the  11th  book  of  the  Digest  ;  this  is  repeated  in  all 
the  editions,  except  in  that  of  Paris,  in  1647,  in  which 
this  trash  is  placed  in  the  6th  volume  of  the  Basilica, 
book  53,  tit.  8,  where  it  is  said,  that  the  collection 
has  been  extracted  from  the  14th  book  of  the  said 
Digests.  But  of  what  Digests  do  they  speak?*  If  of 

*  In  an  Engll;^  work,  entitled,  "  J  general  treatise  of  the  do- 
minion of  the  sea;  and  a  complete  body  of  sea  kms;"  the  person 
who  has  translated  the  Rhodian  laws  into  English,  and  commented 
upon  them,  does  not  hesitate  to  say  that  they  are  taken  from  the  ele- 
venth book  of  the  Digests  of  the  Roman  laws ;  though  if  he  had 
turned  to  that  book  of  the  Roman  Dij^est,  he  would  not  have  found 
a  word  relative  to  the  subject-.  These  laws  are  divided  into  two 
sections,  the  first  containing  21  articles,  and  the  second  51  articles; 
47  of  the  latter  corresp<md  with  the  laws,  printed  by  Vinnius  in 
Greek  and  Latin,  at  the  end  of  his  edition  of  Peckius.  The  Eng- 
lish translator  says,  the  48th  and  +!)th  articles  are  taken  from  (he 
2d  and  5th  titles  of  the  same  11th  book,  and  that  the  50th  and  5ist 


Chap.  IF.  OF  EUROPE.  287 


The  Rhodian  laws  could  not  be  taken  from  the  Digest  of  Justinian. 

those  of  Justinian,  the  11th  book  treats  of  thinq-s 
wholly  different  from  naval  affairs.  The  fourteenth 
book  contains  various  titles,  and  for  that  reason,  I 
am  inclined  to  believe  that  the  Paris  editor  has  put 
the  1 4th  in  the  place  of  the  1 1th  ;  but  there  is  no 
proof  at  all  that  the  Rhodian  laws  have  been  taken 
from  that  book.  Uy  then,  by  the  word  Digest  is 
meant  that  of  the  Rhodian  laws,  from  the  11th  or 
14th  book  of  which  the  collection  in  question  has 
been  taken,  the  difficulty  will  be  still  greater  than  in 

are  detracted  out  of  the  5(h  tiile  of  the  62d  book  of  the  Digests.  In 
his  preface,  lie  remarks  "  that  all  these  laws  have  been  delivered  (o 
"  us  by  Peckius,  in  Iiis  commentaries  de  re  nautica,  in  two  different 
"  fragments,  the  first  of  which,  he  (Peckius)  sa}sliad  obtained  the 
*'  sanction  of  the  emperors  Tiberius,  Adrian,  Antoninus,  and  seve- 
•*  ral  others,  and  (he  last  is  to  be  found  in  (he  1  \th  book  of  the  Di- 
*'  gesls  of  the  Bojuan  lutv  uherc  it  xias  inserted  by  the  emperor  Justl- 
"  nian."  The  whole  of  (his  statement  is  erroneous.  The  commen- 
taries of  Peckius  are  expressly  on  the  titles  of  (he  Digest  and  Code, 
which  rela(e  to  maritime  affairs,  that  is,  lib.  4,  (it.  9,  lib.  14,  tit.  I, 
and  tit.  2,  lib.  +7,  tit.  9,  of  the  Digest,  and  lib.  2,  tit  J,  lib.  I,  tit. 
3,  et  tit.  5,  of  the  Code.    Peckius  says  not  a  word  of  any  sanc(ion  of 
the  emperors ;  and  (he  2 1  st  articles  given  by  the  English  author  as  the 
(ranslation  of  his  firs(  section,  arc  not  to  be  found  at  (he  end  of  the  edi- 
tion of  Peckius.  The  1  ith  book  of  the  Roman  Digest  contains  nothing 
concerning  maritime  affairs  ;  and  as  the  Pandects  consist  only  of  50 
books,  tlie  two  articles  could  not  be  found  in  a  62d  book.    How  a 
person  could  fall  into  so  many  errors-,  is  inexplicable;  yet  he  pro- 
fesses to  give  a  transla(ion  of  the  Rhodian  laws  as  taken  from  Pec':- 
ius,  not  one  of  which  is  to  be  found  in  (hat  writer,  who  makes  no 
mention  of  such  a  collection.  The  collection  is,   probablv,  taken 
from  that  published  by  Leundavius  in  1596,  and  which  some  wri- 
ter, that  the  English  translator  has  followed,  has,  bv  mistake,  attri- 
buted to  Ptckius T. 


283  THE  MARITIME  LAAV        Part  I. 

Examination  of  tlie  preface  to  the  Rhodian  laws. 

the  first  case,  because  we  know  nothing  of  any  such 
Dio^cst,  concerning  which  not  the  slightest  mention 
is  made  by  the  ancients. 

33.  It  is  not  so  much  from  the  title,  as  from  the 
preface,  that  clear  evidence  may  be  drawn  of  the 
spuriousness  of  this  collection.  In  the  epigraph,  it  is 
said,  that  the  Rhodian  law  was  adopted  at  Rome  by 
Tiberius,  Hadrian,  Antoninus,  Pertinax,  and  Lucius 
Septimus  Severus.  Afterwards,  in  the  body  of  the 
preface,  which  ought  to  agree  with  the  epigraph, 
they  speak  only  of  the  constitutions  of  Tiberius,  \^es- 
pasian,  Trajan,  and  Antoninus,  without  mentioning 
Hadrian,  Pertinax,  andSeverus,  as  had  been  done  in 
the  title  page  :  on  the  other  hand,  Vespasian  and  Tra- 
jan are  introduced,  who  were  not  mentioned  before  ; 
from  which  it  is  clear  that  the  compiler  did  not  be- 
long to  the  flourishing  periods  of  Rome,  in  which 
they  wrote  with  more  accuracy  and  good  sense. (280) 

(280)  JUS  NAVALE  RHODIORUM. 

Quod  irnperatores  sacratissimi  Tiberius,  Hadrian,  Antoninus,  Per' 
tinax, Lucius  Septimus  Severjis,  Perp.  Aug.  sanciverunt. 

Tiberius  Civsar  Augustus  Poufifex  Maximus,  Tribunitias  polestatis 
tricies  his.  Quum  me  interpeUassent,  Nautce,  Naucleri,  Mercatnres, 
ttt  qucecumque  in  mari  accidint  in  contributionem  renlant,  Nero  re- 
spondeiis  dixit :  Mnxime  Sapientissivie,  Serenissime  Tiberi  Cccsar, 
equidem  iiiiuiiiie  necessarium  arhitror,  vt  quae  a  Alajestate  tun  pro- 
ponuniur  ipse  cotlandem,  Rhodum  ?nittito  diligenter  inqnirens  nego- 
t/a  Navigantium,  Exercitorum,  et  Mercatoruni ,  et  Vectorum,  et  de 
oneribas,  sire  viercibus  navalibus,  et  Societatibus,  et  Navigiorum 
emptionihus,  ac  Venditionihus,  et  Naupegoruvi  nurcedibus,  ct  de 
auri  argenti  dixersarum  speciermn  depositionibus. 


Chap.  IV.  OF  EUROPE.  289 

The  account  of  the  Rhodian  laws  is  opposed  to  history. 

34.  History  is  entirely  opposed  to  this  account. 
The  author  of  the  preface  affirms,  that  the  Rhodian 
law  was  adopted  at  Rome,  under  Tiberius  Caesar,  in 
the  thirty-second  year  of  his  tribunitian  authority, 
and  in  the  consulship  of  Antoninus.  But,  if  the  Au- 
gustus here  spoken  of  be  Tiberius,  no  consul  of  the 
name  of  Antoninus  existed  in  his  reign.  If,  on  the 
contrary,  Claudius  be  meant,  he  reached  only  the 
twelfth  year  of  his  tribunitian  power.  To  resort  to 
the  probable  mistakes  which  may  arise  in  the  number 
of  years,  as  Godefroi  has  done,  is  not  a  just  and  sa- 
tisfactory manner  of  answering  the  objection.  Be- 
sides, the  author  of  the  preface,  after  citing  the  an- 
swer of  Antoninus  Eudemon,  (whose  name,  how- 
ever, he  does  not  mention,)  which  he  introduces  in 
order  to  give  force  and  authority  to  the  Rhodian 
law,  adds,  that  Augustus  had  thus  established  it, 
and  repeats,  word  for  word,  what  is  said  by  Me- 
cianus.  Now,  if  Augustus  had  given  such  an  or- 
der, why  not  place  him,  as  he  ought  to  have  done, 
at  the  head  of  the  legislators  on  that  subject  t 

IIcEC  omnia  quum  Tiberius  decrelo  complexus  esset  et  subsigvasseti 
tradidit  Antonio  Clarissimn,  ConsuU  et  aliis  Consularibus,  qui  eum 
consulcbant  in  illafelici  et  orbiutn  vertice  tioma,  Laura,  et  As^rippi- 
no,  Consnlibus  Cia7issimis.  Jb  iisdan  nominibus  lute  etiam  vtaximo 
Jmperutori  Vespasiano  fuevunt  oblata,  qui  quum  et  ipse  in  Senatu  am- 
p/issimo  ea  siibsiiinasset,  Ulpius  Trnjanus  una  cum  Senatu  Claiissi- 
mo  legem  banc  Rhodi'onim  edicio  sanciiit. 

An  non  et  Antoninus  ci,  qui  preces  ohlulerat,  respondit  f  Ego  qui- 
dem  Miindi  sum  Dominus,  lex  rero  mans  lege  Rliodia.  Res  nuutiar 
disceptentur  quatenus  ei  nulla  noitra  lex  udversalur.  Idettt  et  Sacra- 
sissimus  Hie  Augxistiis  respondit. — See  note  (278)  page  274. 

Vol..  I.       ^  O  o 


290  THE  MARITIME  LAW       Vart  /. 


The  Code  of  RhocUan  laws  is  the  work  of  modem  Greeks. 


35.  The  manner  in  which  this  collection  is  made, 
as  well  as  its  contents,  furnishes  clear  evidence 
against  these  laws.  We  find  in  them  Latin  words, 
written  with  Greek  letters,  such  as  wjajVav,  <p^or^o<r, 
(pWxocr,  and  others,  which  afford  reason  to  believe, 
that  these  laws  are  not  truly  Rhodian,  but  the  inven- 
tion of  modern  Greeks,  and  that  some  foreign  hand 
had  been  concerned  in  the  composition:  In  fact,  why 
latinise  the  words  above  cited.?  Was  it  that  the  Romans 
might  understand  them  ?  Why  not  then  have  made 
an  entire  translation  ?  It  would  have  accorded  with 
the  dignity  of  Rome  to  have  made  the  Rhodian  laws 
speak  its  language.  The  Greek  tongue,  however, 
was,  at  that  time,  sufficiently  familiar  to  the  Ro- 
mans, to  have  allowed  them  to  preserve  these  laws 
in  their  original  and  native  language.  It  appears, 
therefore,  that  this  collection  is  the  work  of  some 
Greeks  of  the  14th  century.(280) 

36.  What,  in  the  most  irresistible  manner,  de- 
stroys the  originality  attributed  to  these  Rhodian 
laws,  is  the  variance  between  them  and  the  chapter 
(ie  jactu,  which  the  Romans  certainly  borrowed 
from  the  Rhodians.     What  follows  appears  to  me 


(280)  Those  who  are  sufficiently  acquainted  with  the  Greek 
language;  to  distinguish  the  different  changes  it  has  undergone,  in 
different  ages,  will  easily  perceive  that  these  Iwas  are  written  in 
that  language,  as  it  was  spoken  in  the  last  period  of  the  Roman 
empire,  and  not  witli  the  purity  of"  the  Rhodians  of  the  age  in 
which  the  Romans  borrowed  these  laws  from  Rhodes. 


Chap.  IV.  OF  EUROPE.  29  i 


A  difference  between  tlie  pretended  Rhodian  laws  and  those  in  the  Digest. 


an  unanswerable  proof  on  this  subject.  Hermo- 
genes,  in  the  5th  law,  ad  legem  Rhodlant  de  jactu, 
says,  that  when  goods  are  saved  from  a  shipwrecked 
vessel,  the  owner  of  them  shall  not  be  liable  to  con- 
tribute to  the  damage ;  and  that  the  practice  of 
contribution  takes  place  only  in  the  case  where  a 
jettison  has  averted  a  common  danger,  and  the  ship 
has  arrived  safe.  The  lawyer  Paulus,  in  the  7th 
law,  h.  t.  declares,  that  when  a  ship  is  stranded, 
whoever  saves  any  thing  belonging  to  him,  retains 
it  for  his  own  benefit.  The  Rhodian  law,  on  the 
contrary,  chapters  33,  39,  and  40,  decides,  that  the 
ship  lost  must  be  brought  in  collationem,  into  con- 
tribution, with  the  goods  sashed,  or  taken,  from  the' 
wreck.  If  a  ship  receives  any  damage  in  her  masts, 
sails  or  rigging,  by  stress  of  weather,  or  by  light- 
ning, it  forms  no  case  for  contribution.  Contribu- 
tion, however,  must  be  made,  when  the  loss  takes 
place,  by  the  consent  and  with  the  consultation  of 
the  persons  on  board,  with  a  view  to  save  the  ship, 
the  goods,  and  their  lives,  by  averting  the  dagger 
which  threatens  them.  Such  is  the  regulation  of 
the  Roman  law,  to  be  found  in  law  2,  §  1,  and  law 
3  and  3,  (lib.  14,  tit.  2,)  of  the  Digest,  ad  legem 
RJiodiam  de  jactu.  The  decisions  of  the  Rhodian 
laws  of  the  new  code,  are,  in  this  case,  directly  the 
reverse,  and  require  contribution  to  be  made  with- 
out distinction. 

37.  There  is  positive,  and  convincing  proof,  that 
these  laws  were  not  made,  or  copied  from  those  of 


292  THE  MARITIME  LAW         J^art  7. 

Further  proof  that  this  collection  of  Rhodian  laws  is  not  genuine. 

the  ancient  Rhodians,  until  after  the  establishment 
of  Christianity ;  and  I  will  assert  further,  that  they 
belong  to  the  times  of  the  emperors  who  succeeded 
Justinian. 

38.  By  one  of  the  laws  of  this  collection,  it  is 
ordered,  that  the  crew  and  passengers  in  a  vessel, 
as  well  as  the  owner,  or  the  master  entrusted  with 
the  management  of  her,  are  obliged  to  take  an  oath 
on  the  evangelists.(281) 

39.  This  being  an  undoubted  fact,  it  is  not  to  be 
believed  that  any  person  can  be  found  bold  enough 
to  maintain  that  the  Rhodians  were  Christians,  at 
the  time  when  the  Romans  adopted  their  laws, 
though  they  should  suppose,  as  Godefroi{282)  has 
pretended,  that  the  Romans  did  not  adopt  the  Rho- 
dian laws  until  the  reign  of  Antoninus  Pius;  whence, 
I  conclude  with  the  strongest  reason,  if  it  be  true,  as 
has  been  shewn,  that  the  Romans  had  adopted  these 
laws,  under  the  emperor  Augustus,  that  the  gospel, 
which  did  not  then  exist,  could  not  have  been  pre- 
sent to  the  minds  of  the  Rhodians.* 


(281)  Jus  navale  Wiod.  1.  15.  Apiid  Leundav.  torn.  2,  page  266, 
edit.  Franck.  1596.  Exercitor  et  nauia-  et  t^ctores  qui  simul  navi- 
gantjusjurandum  evangdicwn  prcestanto. 

(282)  Godefroi,  de  imperio  maris.  Dissert. 

*  The  English  translator  of  the  Rhodian  laws,  in  the  collection 
referred  to  in  a  former  note,  very  easily  gets  rid  of  this  objection,  by 
saying,  that  the  word  Evangelical  was  added  to  this  law  by  the 
christians T. 


Chap.  IV.  OF  EUROPE.  293 


The  pretended  Rhodian  laws  were  conipile<l  subsequent  to  Justinian. 

40.  There  is  not  a  lawyer,  or  historian,  anterior 
to  the  emperor  Justinian,  who  has  quoted,  or  refer- 
red to  any  Greek  fragment  of  the  laws  contained  in 
the  manuscripts  of  Francis  Pithou.  Justinian  him- 
self, and  his  contemporary  historians,  make  no  men- 
tion of  them ;  on  the  contrary,  they  all  speak 
merely  of  the  commentaries  made  by  the  Roman 
lawyers  on  the  Rhodian  law.  I  shall  observe  fur- 
ther, that  in  the  pretended  collection  of*  the  true 
text  of  these  laws,  this  very  Rhodian  law  itself  is 
cited. (28 3)  If  these  fragments  had  been  taken 
from  the  original  laws,  if  it  were  the  Rhodians  them- 
selves who  spoke,  they  certainly  would  not  have 
said,  in  repeating  an  observation,  secundum  legem 
Rhodiaiiiy  but  secundum  legem  nostram.  So  that 
there  can  be  no  hesitation  in  believing,  that  these 
Greek  extracts,  or  fragments,  found  among  the  ma- 
nuscripts of  Pithou^  and,  afterwards,  published  by 
Leunclavius,  Peckius,  and  others,  do  not  belong  to 
the  true  text  of  the  Rhodian  laws ;  but  are  merely 
some  fragments  of  the  maritime  law  that  was  ob- 
served under  the  Greek  emperors,  who  succeeded 
Justinian,  taken  from  the  true  text  of  laws  which, 
perhaps,  still  existed,  and  to  which  the  same  respect 
was  paid,  as  to  those  contained  in  the  collection  made: 
by  the  order  of  Justinian. 


(283)  Leg.  Rhod.  apud  Leunclavium.  Loc.  cit.  n.  17.  Lex  ita 
pr(ecepit.  Qua  in  mari  navi^antibus  credita  sunt  sub  fidtjussione  ac 
sine  periculo  in  scripturam  ne  refcrantur  quod  si  cotij'ccta  de  iis  scrip- 
/«;a//<er/<  secundum  legem  Rhodiam,  irrita  eslo.n.  IS,  ib.  Trans- 
actio  de  usuris,  secundum  legem  Rhodiam; /a^ 


294  THE  MARITIME  LAW        Parti. 


The  Digest  of  Justinian  does  not  contain  the  original  Rhodian  laws. 


41.  Does  the  compilation  of  Justinian,  then,  con- 
tain the  original  text  of  the  naval  laws  of  the  Rho- 
dians?  A  great  many  modern  lawyers  appear  to 
have  no  doubts  on  the  question ;  they  believe,  that 
the  title,  ad  legem  Rhodiam  de  jactii,  was  a  Latin 
translation  of  the  naval  laws  of  Rhodes.  This  is  an 
error  easily  corrected.  By  a  slight  examination  of 
the  fragments  of  which  the  title  in  the  Digest  ad 
legem  B/wdiam  dejaclu,  is  composed,  it  will  be  seen 
that  they  are  attributed  to  the  lawyers  Labeo,  Pau- 
Jus,  Julian,  Hermogenes,  and  others,  who  lived  at 
different  periods ;  and,  if  we  further  consider,  that 
the  heads  of  the  Digest  under  which  these  frag- 
ments are  arranged,  are  not  entitled  Rhodian  laws, 
as  they  would  have  been,  had  they  been  originals, 
but  are  entitled,  ad  legem  Rhodiam^  we  cannot  be-" 
lieve,  that  they  are  any  thing  more  than  commen- 
taries, composed  by  lawyers,  upon  the  Rhodian  law. 
Thus  the  title  given  to  them  in  the  Digest,  indicates 
that  they  contain  nothing  more  than  the  most  impor- 
tant decisions  of  certain  Roman  lawyers,  on  various 
cases,  which  had  been  provided  for  by  the  true  Rho- 
dian law.  The  conduct  of  these  lawyers,  in  this 
instance,  is  the  same  as  has  been  observed  by  them 
in  regard  to  other  laws,  which  they  have  discussed, 
and  about  which  they  have  reasoned  without 
quoting  the  original  text,  and,  consequently,  without 
having  preserved  it. 

42.  It  clearly  follows  from  what  has  been  said, 
that  we  do  not  possess  the  true  text  of  the  Rhodiao 


J 


Chap,  IV.  OF  EUROPE.  1295 


No  existing  collection  contains  the  true  Rhodian  laws. 


laws,  neither  in  the  Greek  abridgements,  collected 
by  Leunclavius,  and  copied  by  Peckius,  nor  in  the 
title  ad  legem  Rhodiam  dc  jachi,  nor  in  any  other 
Code  which  has  been  hitherto  discovered.  The  col- 
lection of  Pithou  contains  only  some  fragments  of 
maritime  law,  which  the  emperors,  after'  the  death 
of  Justinian,  had  decreed.  We  must,  therefore, 
conclude,  that  the  pretended  Rhodian  laws,  com- 
prised in  the  Greek  collection  of  Michael  Attaliates, 
de  Psellus,  and  other  works  of  the  lower  empire, 
which  make  a  part  of  the  Jus  Greco-Romajiiimy  col- 
lected by  Leunclavius,  and,  consequently,  the  pre- 
tended collection  so  vaunted  by  modern  lawyers, 
are  apocryphal,  and  do  not  contain  any  of  the  ge- 
nuine naval  laws  of  Rhodes. (284) 


(2S4-)  As  Lfunclavius,  one  of  the  editors,  at  the  conclusion  of 
these  pretended  Rhodian  laws,  quotes  the  opinion  ofDocimius,  a 
lawyer  of  the  lower  empire,  in  which  he  decides  in  what  cases  the 
Rhodian  laws  ought  to  take  place,  I  have  conjectured  this  same 
Docimius  to  be  the  person  who  has  forged  them.  I  think  also  that 
the  Glossanst  on  the  eighth  Canon,  dist.  2,  part  1,  quoted  by  Gra- 
tian,  on  the  Decretals,  had  in  view  thh  farrago  ot  pretended  Rlio- 
dian  laws,  when  in  speaking  of  the  Rhodian  law,  lie  adds,  Iniquis- 
siiua  est  ilia  lex ;  scilicet  quia  patientibus  nai'fragium  inhabitatorcs 
omnia  avferant.    Vid.  Isid.  ibid.  c.  17. 


296  THE  MARHIME  LAW        Part  I, 


The  kings  of  Rome  published  no  maritime  laws.  • 

ARTICLE  III. 

Of  the  maritime  laws  of  the  Romans,  contained  in 
the  Digest. 

§  1 .  THOUGH  maritime  commerce  was  not  the 
primary  object  of  the  wars  undertaken  by  the  Ro- 
mans, as  it  was  of  those  carried  on  by  the  Cartha- 
ginians ;  yet  it  is  certain  that  by  means  of  naviga- 
tion they  were  enabled  to  make  conquests,  and  to 
extend  their  empire  on  the  sea.  A  nation  that 
aspires  to  the  empire  of  the  world,  cannot  be  igno- 
rant how  necessary  riches  are  to  the  accomplish- 
ment of  great  designs,  and  that  the  most  certain 
means  of  acquiring  them  is  by  commerce. 

2.  Shepherds  or  warriors,  the  Romans  were  at 
at  first,  less  sensible  of  the  want  of  laws  than  smit- 
ten with  the  love  of  conquest,  or  the  useful  attrac- 
tions of  agriculture.  The  laws  made  by  their  kings 
and  consuls,  had  no  relation  to  navigation.  Those 
ascribed  to  Romulus,  merely  fixed  the  punishments  of 
certain  crimes,  the  ceremonies  to  be  observed  at 
feasts  in  honour  of  the  gods,  and  the  order  which 
ought  to  prevail  among  the  citizens. (285)  Numa, 
who  made  agriculture  a  sacred  duty,  published  no 
law  in  favour  of  commerce.    This  silence  was  imi- 


(2S5)  Dvonis-  Halicarn.  lib.  2,  page  89,  &c.  Terrasson,  in  his 
History  nf  Roman  Jurisprudence,  mentions  a  law  made  to  interdict 
commerce,  or  at  least  to  prohibit  it  to  slaves.  Part  2,  cap.  8,  p.  137. 


awp.  IF.  OF  EUROPE.  297 

Com  Magistrates,  and  a  College  of  Merchants  created,  at  Rome. 

tated  by  his  successors  to  the  throne,  and,  for  a  long 
time,  by  the  chiefs  of  the  republic,  after  royalty  had 
been  proscribed  in  consequence  of  the  cruel  ambition 
of  Tarqutn. 

3.  The  creation  of  prefects  for  furnishing  corn 
was  the  most  ancient  establishment  that  appeared  at 
Rome,  on  account  of  the  supplies  of  grain  obtained, 
at  first,  from  Sicily  and  Sardinia,  and,  after  the  Punic 
wars,  from  .Vfrica,  and  from  Egypt,  during  the  times 
of  the  first  emperors,  and,  lastly,  from  Marseilles  and 
Gauljduringthedecline  of  the  empire.  About  the  year 
of  Rome  259,  was  established  the  College  of  Mer- 
chants, called  also  the  College*  of  Mercurials ^[2^6) 
either  because  they  met   together  in  the  vicinity  of 

*  Tlie  term  CoUegium  or  Unhersitas,  in  the  Roman  law,  means 
any  kind  of  Corporation,  for  any  purpose  whatever.  Tlieir  Cor- 
porations were  all  aggregate  ;  three  persons  at  least  were  necessa- 
ry to  make  a  corporation.  The  powers,  capacities,  and  disabili- 
ties of  these  Corporations,  very  nearly  resembled  those  created  by 
our  laws T. 

(286)  The  merchants  of  Rome  formed  a  College,  the  creation  of 
which  was  confirmed  by  theconsuls,  Appius  Claudius,  and  PubJius 
Servilius.  Livy,  lib.  2,  cap.  27.  "  Certamen  consulibus  inciderat,  uter 
dcdkaret  Mercurii  (zdem .  Senatus  a  se  ad  populum  rejecit :  titri  eorum 
dedicatio  Jus-iu  populi  data  esset,  eum  praesse  annomt,  tncrcatoru?n 
collegium instiiuere,  solemniapro pontijicejussit  suscipere.  The  dedi- 
cation of  the  temple  of  Mc-rcury,  mentioned  in  this  passage  of  Livy, 
was  made  on  the  ides  of  May,  in  the  year  of  Rome  259.  The  fes- 
tival of  the  merchants  was  ever  afterwards  celebrated  on  the  same 
day  of  the  year.    Rosin.  Andq.  Rojii.  lib.  4,  cap.  0.  Alex,  ab  Alex. 

Vot.   I.  P  p 


298  THE  MARITIME  LAW        Part  L 

Ancient  Ceremonials  of  the  Merchants  of  Rome. 

the  temple  of  Mercury,(287)  or  because  the  Romans 
regarded  this  divinity  as  the  patron  of  commerce,  as 

Genial.  dier.Wh.  3,  cap.  18.  The  epithet  merchant  was  given  to 
Mercury,  as  may  be  seen  in  the  following  inscription,  preserved  by 
Gruterus,  p.  55,  n.  1, 

Mcrcurio.  Negociatori 
.    Sacrum. 
Numidus  Albinus,  ex  voto. 

(287)  The  merchants  from  a  hope  of  securing  greater  gains,  after- 
wards sprinkled  themselves  with  a  branch  of  laurel  dipped  in  the 
water  of  the  fountain  of  Mercury,  near  the  gate  Capena.  The  cere- 
monial is  described  by  Ovid,  (Fasti,  lib.  5,  1.  671)  addressing  him- 
self to  Mercury. 

Te,  quicumque  suas  projitentur  vendere  vieixes, 

Thure  dato,  tribuas  ut  aibi  lucra,  rogat. 
Est  aqua  Mercurii,  porta  vidua  Capena  : 

Si  Jurat  expertis  credere,  numen  habet. 
Hue  venit  incinctus  tunicas  mercator ;  et  urna 

Purus  svjita,  qua7nferat,  haurit  aquam. 
IJdafit  hinc  laurus  :  lauro  sparguntur  ah  uda 

Omnia,  quo;  dominos  sunt  habitura  novos. 
Spargit  et  ipse  s7ios  lauro  rorante  capillos; 

Et  peragit  solitdfallere  voce  preces 
Ablue  prxteriti  perjuria  temporis  inquit* 


*The  tenor  ofthis  supplication  to  the  God,  does  not  lead  us  to  supposethat 
the  merchants  of  those  days  were  less  ignorant  of  the  arts  of  ti-ade  tlian  thost 
of  modem  times. 

Ahlue  prcvteritd  perjida  verba  die 
Sive  ego  tefeci  teste}n,falsove  citari. 
Non  audituri  numina  inagna  Jovis. 

Da  modo  lucra  mihi,  da  facto  gaudia  lucre-; 
Etfaceut  emtori  dedissejuvet. 


Chap.  IV.  OF  EUROPE.  299 

■i.  —  ....  ■  .       "-  .y 

Commerce  honoui-cd  by  tlie  Romans. 

mentioned  by  Plautus,  in  the  prologue  to  Amphi- 
tryon. (28  8) 

4.  Besides,  it  appears,  that  Rome  held  in  high 
esteem  those  cities  which  were  distinguished  for 
commerce,  or  ship-building,  or  celebrated  for  any 
considerable  sea-port.  This,  without  doubt,  in- 
duced her  to  adopt,  the  impression  on  her  coins,  of 
a  prow,  a  Neptune,  or  a  dolphin,  as  had  been  done 
by  the  Tyrians,  Sidonians,  Byzantines,  the  inhabi- 
tants of  Leucate,  Chelidonia,  Syracuse,  and  of  many 
other  cities.  It  was  from  the  same  motive,  that 
when  fleets  were  sent,  in  the  time  of  the  republic, 
for  the  purpose  of  transporting  supplies  of  provisions, 
she  caused  medals  to  be  struck  with  the  figure  of 
the  prow  of  a  vessel,  and  this  legend  :  Ad  coemendum 
friimentiLin  ex  S.  C.  The  emperors  who  followed  the 
same  practice,  put  on  their  medals  the  figure  of  a 
vessel  with  the  words,  Annona  Aug.  or  Cc'}'es  Aug. 
Many  of  this  kind,  struck  in  the  reigns  of  Nero,  and 
Antoninus  Pius,  are  still  to  be  seeru 


The  poet  makes  Mercury  laugh  at  this  request,  conscious  of  his 
gwnwant  of  honesty, 

Talia  Mercurhis  poscenlem  ridet  ah  alio 
Se  memor  Ortygias  surripidsse  bores T, 

(288)  Plaut!,  Amphilruo.  Prolog.  Mercurius 
Ut  V05  in  nost7'is  Toltis  mercimoniis 
Emundis,  'cendundisqiie  me  latum  lucn's. 
Afficae,  at  que  odjuran-  in  rebus  omvTbus. 


SOO  THE  MARITIME  LAW       Parti. 


Increase  and  extension  of  the  commerce  of  Rome. 


5.  When  Egypt,  after  the  battle  of  Actium,  be- 
came a  province  of  the  empire,  under  Augustus,  the 
commerce  of  Rome  rapidly  increased.  This  con- 
quest brought  opulence  to  Rome,  and  an  abundance 
of  grain  was  furnished  from  that  fertile  region. 
Egypt,  at  that  time,  kept  up  a  communication  with 
India  by  means  of  the  commerce  with  that  country, 
which  had  long  been  established  by  Ptolemy  Phiia- 
delphus.  At  this  period  the  Romans  became  as 
powerful  at  sea  as  they  were  on  land. 

6.  When  they  adopted  the  naval  laws  of  the  Rho- 
dians,  the  world  had  resounded  with  the  fame  of 
their  maritime  exploits.  Great  generals  had  ap- 
peared, and  the  union  of  all  the  treasures  and 
talents  of  the  age,  had  conferred  on  Rome  every 
species  of  glory.  The  Roman  Praetor,  without  the 
aid  of  the  Rhodian  code,  had  already  provided,  by 
a  particular  law,  for  some  subjects  of  maritime  dis- 
pute. The  complaints  made  by  passengers,  and 
guests,  of  the  tricks  of  mariners  and  hosts,  had  alrea- 
dy come  to  his  knowledjje.  These  disorders  would 
not  have  happened,  if  the  masters  of  ships,  and  the 
innkeepers,  had  been  people  of  good  reputation,  and 
incorruptible  integrity  ;  but  as  these  professions  were 
at  that  time,  regarded  as  the  very  lowest,  they  were 
exercised  only  by  persons  of  bad  character.  These 
abuses  the  Praetor  endeavoured  to  remedy  by  his 
edict,  Nautce,  caupones,  sfabularh',  tit  recepta  resti- 
tuant.  He  gives  to  guests  and  passengers  an  action 
de  recepto,  arising  out  of  the  contract  between  them 


Chap.  IV.  OF  EUROPE.  301 

First  notice  of  ships  and  mariners  in  the  Pundccls. 

and  mariners  and  innkeepers,  to  recover  whatever 
had  been  entrusted  to  their  care.  He  gave,  besides, 
a  right  of  action,  ex  quasi  delicto,  against  the  same 
persons,  by  which  they  were  condemned  to  pay  dou- 
ble the  value  of  the  thing  lost  or  stolen  in  the  ship  or 
inn.* 

7.  It  is  in  the  9th  title  of  the  4th  book  of  the 
Pandects,  that  mention  is  made,  for  the  first  time,  of 
ships  and  mariners.  This  subject,  if  we  may  be- 
lieve Cujas  and  Heineccius,  is  misplaced,  since  the 
action  de  recepto  does  not  belong  to  ihosc  primordial 
actions  that  must  be  prosecuted  at  law^,  and  which 
Justinian  promised  to  treat  of  in  the  first  four  books 
of  the  Pandects. f  Tribonian,  however,  has  thought 
proper  to  place  it  in  this  part,  either  on  account  of 
its  resemblance  to  the  preceding  title,  wliich  treats 
of  arbitrators  who  having  accepted  the  arbitration, 
were  bound  to  give  their  award,  as  Cujas  supposes, 
or  because  Julian,  in  his  perpetual  edict,  had  brought 
together  the  edict  de  receptis  arbitris,  and  that  de 
receptis  a  nautis,  cauponiOus,  ct  siahidariis,  which  is 
the  opinion  of  Heineccius. 

*  The  action  de  rccepio,  answers  to  our  action  on  the  case  againsl 
haikes.  The  action  ex  (juasi  delicto,  was  a  penal  action,  or  rather, 
in  tills  case,  an  action  founded  in  tort,  to  recover  double  da- 
mages  T. 

•f  Justinian  arbitrarily  divided  the  Digest  into  seven  parts ;  tiie 
first  consisted  of  four  books  of  what  he  called  the  primordia.  See 
Taylor's  Elements  of  the  Chi  I  Lai':,\^.  21 T. 


363  THE  MARITIME  LAAV        Part  L 

Various  Maritime  contxacts  ti-eatetl  of  in  the  Digest. 

8.  The  9th  title  comprises  seven  laws:  namely, 
three  of  Ulpian  ad  edktum,  two  of  Gaius,  on  the 
provincial  edict,  and  two  of  Paul,  ad  edictum.  The 
title  announces  an  intention  to  speak  of  the  first 
part  of  the  edict ;  but  the  last  law  further  relates  to 
a  second  law  against  the  masters  of  ships.  For  this 
reason,  Tribonian  has  been  accused  of  negligence, 
either  for  not  having  given  the  edict  of  the  Praetor 
entire,  or,  for  having  placed  the  last  law  under  a 
iitie  to  which  it  did  not  belong. 

9.  At  the  beginning  o^  ihe  fourteenth  book  of  the 
Digest,  is  the  title  de  exercitoria  actione.  It  treats 
of  maritime  contracts,  in  seven  laws,  two  of  them 
published  by  Ulpian,  three  by  Paul  on  the  edict,  one 
by  Gaius,  on  the  provincial  edict,  and  the  last  by 
Africanus,  taken  from  the  8th  book  of  his  questions. 
In  this  last  law  it  is  enacted,  that  the  owner  of 
the  ship,  called  e.vercitor  ?iavis,  and  who  receives 
all  the  earnings  for  his  own  benefit,  should  be  ad- 
judged by  the  Praetor,  to  fulfil  all  the  obligations 
contracted  by  the  person,  entrusted  with  the  ma- 
nagement of  the  ship,  who  is  called  magister  na- 
visy  or  master,  whether  they  concern  the  freight, 
the  purchase,  or  sale  of  the  goods.* 

*  See  note  ante,  p.  272.  And  he  v/as  not  only  answerable  for  the 
contracl-s  of  the  master  appointed  by  himself,  but  for  the  master 
substituted  by  that  master,  without  his  knowledge  or  consent.  This 
Peckius  thinks  very  strange,  but  the  owner,  according  to  Vinnius^ 
has  his  remedy  over  against  the  first  master,  by  an  action  ex  loca- 
iv,  or  ex  mandato T, 


Chap.  IV.  OF  EUROPE.  30: 


The  responsibility  of  ship-owners  by  the  Roman  law. 

10,  This  title  differs  from  the  other,  KaiitiC,  cau- 
pones,  stabulariiy  lit  rccepta  reslituant.  By  that  ac- 
tion the  employer  of  a  ship  is  bound  to  restore  any 
article  which  has  been  entrusted  either  to  him,  or  to 
those  to  whom  he  has  confided  the  management  of 
the  vessel,  and  who  have  received  it  on  board  under 
a  promise  of  safe-keeping.  This  decision  is  applica- 
ble to  all  who  are  on  board  of  the  ship  ;  and  it 
further  directs  that  he  shall  be  answerable  ex  quasi 
delicto,  in  double  the  amount,  for  all  damages  caused 
by  the  fault  of  any  of  the  persons  in  his  service.'^ 
By  this  law,  the  employer  is  bound  by  the  con- 
tracts made  by  the  master  or  captain  of  his  ship, 
and  for  whatever  relates  to  the  objects  for  which 
the  latter  is  employed. f  This  title  is  put  in  this 
place,  according  to  Cujas,  because  Tribonian,  having 
begun  to  treat  of  the  actions  which  arise  out  of  the 
different  kinds  of  obligations,  before  passing  to  ano- 

*  By  this  must  be  meant  the  mariners  or  persons  employed  in 
navigating  the  ship.  Sed  si  cum  quolibet  nautarum  sit  contracttim, 
non  dalur  actio  in  exercitorem,  quamqnam  ex  delicto,  ciijusvis  eorum 
qui  navis  navi<rn7id(C  causa  in  nave  sint  datur  actio  in  exercitorem.  D. 
lib.  U,  tit.  1,  1.  2 T. 

f  TIic  owner  was  not  liable  for  every  contract  of  the  master,  but 
enly  lor  such  as  related  to  the  ship,  and  business  entrusted  to  his 
management.  Non  autem  ex  omni  causa  prcctor  dat  in  exercitorem 
actionem  ;  sed  ejus  rti  nomine,  cujus  ibi  prapositus  fuerit,  id  est,  in 
cam  rem  propositus  sit ;  id  putn  si  ad  onus  rchendam  locntum  sit,  aid 
aliquasres  emerit  utiles  navit^anti;  -eel  si  quid,  rejiciendce  7iavis  caiisa. 
c.ontractwn  vet  impenswn  est ;  nl si  quid  nnutoc,  opfrmum  nnmiv  pa- 
tent.   Dig.  ib.  1.7 T. 


304  THE  MARITIME  LAW        Fart  I. 

The  Rhodian  law  in  cases  of  jettison  found  in  the  Ditjest. 

ther  subject,  was  desirous,  previous  to  concluding  this 
part  of  his  work,  to  speak  of  actions  which  might  be 
brought  against  a  person,  in  consequence  of  the 
obligations  contracted  by  his  agent,  such  as  the  ac- 
tiones  excrcitorue^  et  institoriai  and  others  of  the 
same  kind.* 

1 1.  Tribonian,  in  the  first  title  of  the  14th  book, 
while  speaking  of  the  actio  exercitorial  treats  also 
of  seamen.  It  is  for  this  reason,  perhaps,  that  he  has 
introduced  the  Rhodian  law  de  jactu,  under  the  se- 
cond title,  though  that  was  not  its  proper  place.  He 
there  declares,  that  whenever,  in  order  to  save  the 
ship  or  goods,  it  becomes  necessary  to  sacrifice  a 
part  of  them,  by  voluntarily  throwing  them  into  the 
sea,  all  the  owners  of  goods  laden  on  board,  must 
contribute  to  such  loss,  and  indemnify  the  person  who 
has,  by  means  o^  ihQ  jettison,  procured  the  safety  of 
all.  This  title  comprises  ten  laws ;  namely,  four 
of  Paul,  one  of  Papinian,  two  of  Julian,  one  of 
Callistratus,  one  of  Hermogenes,  and  another  of  Vo- 
lusius  Mecianus.  This  is  all  that  the  Pandects  have 
preserved  of  the  Rhodian  laws. 

12.  Mention  is  made  in  the  22d  book  of  the  Di- 
gest of  marine  interest,  or  the  contract  of  bottomry, 
under  the  title  de  nautico  fimore.  This  title  com- 
prises nine  laws  ;  namely,  two  of  Modestinus,  two  of 

*  See  Peckius  ad  rem  nauticani,  p.  G9,  ct  sequ.  and  the  notes  and 
observations  oi  Vinniu? T. 


Chap.  IV.  OF  EUROPE.  50S 


Roman  law  of  Bottomry,  and  concerning  Barratry. 


Paul,  one  of  Papinian,  one  of  Pornponius,  one  of 
Scasvola,  one  of  Ulpian,  and  one  of  Labeo.  These 
laws  allow  a  higher  rate  of  interest  for  money  lent 
on  bottomry,  than  was  permitted  in  cases  of  com- 
mon loans,  because  the  risks  to  which  the  lender 
is  subject  are  infinitely  greater  than  those  in  con- 
tracts made  relative  to  loans  on  land. 

13.  In  the  64th*  book,  is  the  5th  title,  Furtiadver- 
si/s  ?}anfas,  caupones^  stabidarios.  It  consists  of  one  law 
of  Ulpian,  taken  from  the  eighth  book  ad  edictum. 
In  treating,  in  this  book,  of  private  frauds  and  thefts, 
it  was  thought  proper  to  point  out  those  committed 
on  board  of  ships,  and  which  we  call  barratri/.\ 
The  action  is  derived  from  the  praetorian  edict  in 
dnpliun  i  it  is  general,  and  without  exception,  against 
all  those  em.ployed  on  board  of  ships  by  the  masters 
or  owners,  in  all  cases  of  thefts  committed  by  them. 

14.  The  9th  title  of  the  same  book,  (47th,)  treats 
de  incendioy  riiinay  naiifragioy  rate,  nave  expugnata. 
It  comprises  twelve  laws,  namely,  four  of  Ulpian, 
three  of  Gaius,  two  of  Callistratus,  one  of  Paul,  one 

*  This  title  is  to  be  found  in  the  47th  book  of  the  Digest T. 

f  Barratteric.  The  English  word  barratry  is  derived  from  the 
Italian  barrntare,  to  cheat,  a  term  of  barbarous  origin.  It  signifies 
any  fraud  or  cheating  by  the  master  or  mariners  to  the  prejudice  of 
the  owner.  Emerigon,  des  assurances,  torn.  1,  p.  366.  Marshal,  vol. 
1,  p.  452.  Guidon  de  Iamer,chap.  9,  §  1 T. 

Vol.  I.  Q  q 


306  THE  MARITIME  LAW        Part  /. 

■;- ■» 

Roman  law  against  theft. 

of  Neracius,  and  another  of  Marcianus.  Against 
theft  accompanied  with  violence,  there  was  an  edict 
de  vi  bonorum  raptorian*  It  seems  that,  at  that 
time,  as  well  as  at  the  present  day,  theft  was  con- 
sidered more  heinous,  when  the  perpetrator  took, 
advantage  of  fires,  shipwrecks,  and  similar  acci- 
dents, for  the  more  easy  commission  of  the 
crime.  To  the  punishment  inflicted,  the  praitor 
added  fourfold  damages,  if  the  action  was  brought 
within  the  year,  and  single  damages  after  the  expi- 
ration of  that  time.f 

*  Actions  for  theft  were  given  by  the  Roman  law  in  many  cases, 
for  taking  or  detaining  the  goods  of  another,  which,  in  tlie  English 
law  are  considered  not  as  crimes,  but  as  torts,  for  which  a  civil  ac- 
tion of  trover,  or  trespass  on  the  case,  would  lie  against  the  wrong 
doer.  Inst.  lib.  4,  tit.  4,  §  6 T. 

f  The  Roman  laws  gave  actions  for  single,  double,  triple,  and 
quadruple  damages.  In  manifest  theft,  where  the  party  is  appre- 
hended with  goods,  or  taken  in  the  fact,  fourfold  damages  are  giv- 
en ;  in  those  of  theft  not  7nanifest,  double  damages.  Inst.  lib.  4,  tit.  6. 
Peckius  seems  to  have  some  doubt  whether  the  quadrupliim  meant 
fourfold  the  value  of  the  thing  stolen,  or  in  what  other  method  it 
should  be  estimated,  and  observes,  that  there  are  as  many  opinions 
about  it  as  there  are  heads,  and,  as  Terence  says  in  his  Phormio,  of 
three  lawyers  who  were  consulted,  one  answered  in  the  affirmative, 
another  in  the  negative,  and  the  third  took  time  to  consider.  Peck- 
ius, ad  rem  vauticum,  p.  301.  But  from  the  terms  of  the  law  de  vi 
bonorum  rapiorum,  Inst.  lib.  'i-,  tit.  1 1,  it  seems  pretty  certain  that 
the  value  of  the  thing  was  the  ratio  of  calculating  the  damage.  It  is 
true,  that  in  this  case,  the  thing  itself  is  included,  and  therefore  it 
amounts  to  no  more  than  a  triple  penalty.  But  these  actions  of 
theft  for  double  or  quadruple  damages,  did  not  take  away  the  right 
of  the  party  to  bring  his  action  to  recover  the  thing  itself, — (condi- 


Chap.  IV.  OF  EUROPE.  307 

Publication  of  the  Theodosian  Code. 

ARTICLE  IV. 

Of  the  Maritime  Laws  contained  in  the  Theodosian 

Code. 

§  1.  BY  a  law  of  the  15th  January,  in  the  year 
438,  Theodosius  II.  published  his  Code,  which 
comprehended  a  collection  of  all  the  laws  enacted, 
by  the  lawful  emperors  who  preceded  him.  Cor- 
rectly speaking,  it  is  the  first  body  of  laws  possessed 
by  the  Roman  empire.  The  Codes  of  Hermogenes, 
and  of  Gregorian,  already  existed ;  but  they  were 
never  clothed  with  the  sanction  of  sovereign  autho- 
rity, that  could  alone  render  them  authentic,  and 
make  their  observance  obligatory  on  the  peo- 
ple.(289) 

2.  This  Code,  which  has  been  commented  on  by 
the  celebrated  Godefroy,  though  compiled  by  Theo- 
dosius antecedent  to  the  reign  of  Justinian,  has  not 
obtained  the  respect  that  has  been  shown  to  the  se- 

tionis)  against  the  thief  himself,  or  his  heir,  or  the  action  Cvhidica-. 
tionis)  against  whoever  had  the  possession  of  the  thing  stolen,  lib. 
^,  tit  1,§  19. 

(289)  This  Code,  in  all  the  editions,  is  dated  in  the  15th  con- 
sulate of  Theodosius,  which  corresponds  with  the  4.']3th  year  of 
the  Christian  a?ra;  but  it  contains  laws  which  were  not  made  until 
a  year  after.  It  is,  therefore,  necessary,  instead  of  the  15th,  to 
read  tlie  16th  consulate,  agreeing  with  (he  year  of  Christ  4-36. — 
It  appears,  from  this  date,  that  the  publication  did  not  take  place 
jjntil  two  years  afterwards. 


308  THE  MARIllME  LAW        Part L 


Difference  in  tlie  titles  in  tlie  Codes  of  Theodosius  and  Justinian. 

cond.(290)  Justinian,  however,  took  many  titles 
and  numerous  laws  from  the  Theodosian  Code. 
The  16th  title  of  the  7th  book  corresponds  with 
the  45th  title  of  the  12th  book  of  the  Code  of  Jus- 
tinian, which  treats  de  Uttoimm  et  itinerum  custodia. 
It  contains  three  laws  of  Honorius  and  Theodosius. 
By  the  first,  Honorius  abolishes  the  guard  established 
for  the  shores  and  ports,  by  Stilicho,  who  prohibited 
persons  going  from  the  east  to  the  west.  By  the 
second,  he  ordered  the  military  ports  to  be  maintain- 
ed to  guard  the  coasts,  ports,  and  islands,  within  the 
eastern  empire,  in  order  to  prevent  the  barbarians 
who  ravaged  the  western  empire,  from  opening  a 
passage  into  the  east.  In  the  third,  Theodosius  pro- 
hibits the  carrying  of  merchandise  among  the  bar- 
barous nations,  and  prescribes  the  conduct  to  be 
observed  by  the  commanders  of  ships  when  they 
leave  port. 

3.  The  17th  title,  treats  de  lusoriis  Damivi,  or 
Danubii.  This  title  is  not  found  in  the  Code  of 
Justinian.    Naves  lusoricc  were  armed  vessels,  which 


(290)  The  Theodosian  Code,  received  and  observed  until  it 
was  abrogated  b)-  that  of  Justinian,  is  a  precious  monument  of  the 
industry  and  care  taken  by  that  emperor  to  save  and  preserve  the 
Roman  jurisprudence,  which  was  entirely  unknown  at  Rome, 
after  Honorius  had  transferred  the  seat  of  government  to  Ravenna 
to  live  there  in  idleness,  and  had  left  Rome  and  all  Italy  a  prey  to 
Alaric,  king  of  the  Goths.  It  was  owing  to  that  cause  that  those 
nations  entirely  subverted  the  Roman  jurisprudence,  and  subjected 
the  conquered  countries  to  their  own  laws. 


Chap.  IV.  OF  EUROPE.  309 

Various  titles  in  the  Theo<\oslan  Code  adoptetl  by  Justinian. 

sailed  along  the  rivers  whicli  divided  tiie  Roman 
empire,  for  the  purpose  of  restraining  the  privateers 
of  enemies,  as  well  as  to  cruise  for  themselves. 
Some  of  them  were  stationed  in  the  Rhine,  which 
separated  the  empire  from  Germany  ;  others  on  the 
Meuse  and  Danube,  which  divided  the  empire  from 
Scythia.  In  this  one  law,  Thcodosius  regulates  the 
number  of  ships  destined  to  guard  the  confines  of  the 
empire,  and  those  which  are  to  be  put  into  service 
each  year,  as  occasion  may  require. 

4.  The  12th  title  of  the  10th  book  treats  de  das- 
sicis.  The  same  law  is  given  by  Justinian,  in  the 
13th  title  of  the  lOth  book  of  his  Code,*  of  which 
having  spoken  in  the  next  article,  it  is  unnecessarv 
to  say  more  concerning  it  here. 

5.  The  5th  title  of  the  13th  book  treats  de  navi- 
culariisy  in  the  same  manner  as  Justinian  has  done; 
hut  the  latter  has  comprised  the  subject  in  six  laws  • 
while  Theodosius  has  expanded  it  into  thirty-ejf^ht. 
Sixteen  of  these  laws  grant  various  privileges  to  the 
masters  of  ships  employed  as  public  transports,  the 
others  contain  some  regulations  for  tlic  prevention 
of  frauds. 

6.  The  next  title  treats  de pnrdiis  navicularionim. 
I'his  has  also  been  adopted  by  Justinian  in  his  Code. 

*  The  title  cfc  classicis  is  the  12th  of  the  1 1  th  book  of  the  Code 
of  Justinian T. 


310  THE  MARITIME  LAW         ]^art  L 

Various  titles  of  the  Theodosian  Code,  rdative  to  ships  and  mariners. 

It  contains  only  three  laws ;  while  the  same  title  in 
the  Code  of  Theodosius  comprises  sixteen.  The 
purport  of  it  is,  that  the  estates  of  mariners,  sold,  or 
passed  into  foreign  hands,  by  any  title  whatever,  shall 
remain  subject  to  the  same  obligations  as  when  they 
belonged  to  the  mariners. 

7.  This  title  is  followed  by  a  second,  de  navibus 
7ion  excusandis,  which  corresponds  with  that  point- 
ed out  in  the  Code  of  Justinian.  It  contains  two 
laws,  both  of  Honorius  and  Arcadius,  while  one 
of  those  of  Justinian  bears  the  name  of  those  em- 
perors, and  the  other  of  Theodosius  and  Valen- 
tin ian. 

8.  The  8  th  title,  ne  quid  oneri  publico  imponatiiry 
contains  the  same  law  of  Arcadius,  which  was  tran- 
scribed by  Justinian  into  his  Code,  under  the  same 
title. 

9.  The  9th  title  treats  of  shipivrecks.  It  com- 
prises six  laws,  almost  all  of  which  were  adopted  by 
Justinian,  and  for  that  reason  I  shall  forbear  any 
examination  of  it. 

10.  The  twentieth  title  of  the  14th  book  of  the 
Theodosian  Code,  de  pretio  piscis^  is  not  to  be  found 
iathat  of  Justinian.  It  contains  but  one  law,  and 
that  by  Theodosius  and  Honorius.  The  purveyors 
for  the  imperial  table,  called  niinisteriales  opsonatores^ 
purchased  fish  at  excessive  prices ;  but  the  fishermen 


Chap.  IV.  OF  EUROPE.  311 


Laws  relative  to  the  boatmen  and  others  employed  to  bring  com  to  Rome. 

finding  themselves  not  paid  by  those  whose  office  it 
was  to  supply  the  imperial  table  with  that  article, 
complained  to  the  emperor  on  that  subject,  who,  to 
put  an  end  to  all  complaints,  fixed  by  law  the  price    t^ 
offish. 

11.  The  subsequent  title,  de  nautis  Tiberinis,  is 
the  same  as  that  given  in  the  Code  of  Justinian, 
and  contains,  in  fact,  the  same  law. 

12.  Justinian  did  not  think  proper  to  comprise 
in  his  Code,  the  22d  title  of  the  Theodosian  Code, 
de  saccariis  partus  Ro7?iie.  At  the  distance  of  eigh- 
teen miles  from  Rome  was  a  port,  to  which  was 
brought  from  the  provinces,  all  the  wheat  destined 
to  furnish  bread  for  that  city.  The  horreumy  or 
public  granary  was  there  erected,  in  which  corn  was 
kept,  until  it  could  be  transported  to  Rome,  At 
this  port  was  established  a  corps  of  boatmen,  caitdi- 
carii,  sailors  of  the  Tiber,  or  ?iavi'curii,  who  carried 
the  grain  to  Rome.  The  people  whose  business  it 
was  to  measure  the  corn  deposited  in  the  granaries, 
were  called  mensores  portuenses.  There  were  be- 
sides workmen,  {QvmQd  fabri  ?iavales  poj-tue?ises,  of 
which  mention  is  made  in  an  ancient  inscription 
found  at  Ostiaj(291)  and, lastly,  the  scaccarii.  These 
were  employed  to  carry,  in  bags,  all  the  goods 
which  arrived  in  the  port,  for  fixed  wages.     The 

f29I)  The  following  is  the  inscription,  mentioned  by  Gruterus, 


312  THE  MARITIME  LAW        Parti. 

The  Scaccai-ii,  or  bag-men  appointed  by  law  to  carry  goods  at  Rome. 

emperors  Valentinian  and  Valens  by  the  law,  which 
constitutes  this  title,  ordered,  all  merchandise,  be- 
longing to  individuals,  arriving  at  this  port,  to  be 
transported  by  the  scaccarii  or  bag-men,  belonging 
to  this  company,  under  the  penalty  that  whoever 
employed  other  persons,  should  forfeit  a  fifth  part 
of  the  merchandise.  Such  was  the  privilege  grant- 
ed to  a  company,  considered  so  necessary  to  the 
republic. 


page  437,  n.  2.  said  to  have  been  at  Ostia  on  the  base  of  a 
statue;  as  I  was  informed  by  the  Abbe  Charles  Fea,*  my  learned 
friend,  and  a  celebrated  antiquarian  at  Rome  : 

P.  MARTIO.  QUIR. 
PHILLIPPO. 

CITRATORI.  VI^.  PRCENESTINiE. 

^IDILICO.   CURULI.  V.  Q.  A.   B.EEARIO. 

FABRUM  NAVALIUM. 

CORPUS.  i'ABRUM,  NAVALIUM. 

OSTIENSES.  aUIBUS.  EX.  S.  C.  COIRE.  LICET. 

PATIONO.  OPTIMO. 

S.  P.  P. 


*  M.  Abbe  Fea  has  lately  been  appointed  by  the  Pope,  Commissaiy 
g^eneral  and  President  of  the  Antiquariaas  in  the  States  of  the  Church. 


Chap.  IV.  OF  EUROPE.  3l5 

Maritime  regulations  in  the  Code  of  Justinian. 

ARTICLE  V. 

Of  the  Maritime  Laics  contained  in  the  Code  of  Jus- 
tinian. 

§  1.  THE  Code  of  Justinian, (292)  contains  some 
maritime  regulations.  It  is  necessary,  therefore,  to 
give  an  account  of  the  titles  to  be  found  in  it  relative 
to  this  subject.  The  first  which  offers  is  the  25th  title 
of  the  4th  book  de  institoria  et  excrcitoria  actione. 
The  nature  of  tlie  actio  exercitoi'ia,  has  been  ex- 
plained in  the  Digest.  Under  this  title,  which  con- 
tains six  laws,  is  the  fourth,  published  by  Diocle- 
sian  and  Maximin,  which  speaks  of  this  action.  It 
directs,  that  the  obligations  contracted  by  the  master 
or  patron  of  a  vessel,  appointed  by  a  woman,  should 
be  binding  on  the  owner  in  the  same  manner  as  by 
the  actio  institoria.*     Cujas,   in  his  Paratitles^  has 


(292)  Justinian  illustrated  the  Roman  jurisprurlence  in  the  Code 
of  laws  which  bears  his  name,  and  which  he  pubhshed  in  529,  and 
again  in  333  :  lie  added  afterwards,  the  Digest-dnA  Institutes.  The 
last  edition  of  them  was  given  in  53+,  which  has  been  preserved  to 
the  present  day.  A  considerable  time  afterwards,  the  No\els  were 
subjoined,  acollection  containing  1 63  Constitutions,  and  13  Edicts 
of  Justinian.  All  these  works,  though  in  some  respects  detective, 
have  juslly  conferred  on  this  emperor,  the  title  of  the  restorer  of 
Roman  jurisprudence.  It  is  true  that  Tribonian,  Dorotheus,  The- 
ophilus,  and  other  learned  lawyers,  contributed  to  their  perfec- 
tion. 

*  In  the  cases  where  a  master  had  given  to  a  slave,  or  other 
person,  the  management  of  a  ship,  a  warehouse,  or  of  any  partica- 
VoL.  I.  R  r 


314  THE  MARITIME  LAW        Part  L 

m\       .."■': .  '         ,  '  ...r 

Roman  law  in  cases  of  intestacy. 

explained  in  what  these  two  actions  agree,  and  how 
far  they  differ  from  each  other. 

2.  In  the  33d  title  of  the  same  book,  da  nautica 
famore,  we  find  four  laws  of  Dioclesian  and  Maxi- 
min.  They  contain  regulations  similar  to  those  al- 
ready mentioned  in  the  Digest,  or  Pandects. 

3.  The  62d,  or  last  title  of  the  6th  book,treats  J^A^- 
reditatibus^  decuriomim^  navkidariorum,  cohortalium, 
militum,  et  fabricensium.  For  each  of  those  objects 
there  is  a  particular  law,  making  five  in  the  whole. 
They  direct,  that  when  any  person  dies  intestate, 
and  without  lawful  heirs,  the  property  of  the  de- 
ceased should  not  go  to  the  public  exchequer,  but  to 
certain  persons,  societies,  or  corporations.  Thus, 
by  the  first  law  of  the  emperor  Constantine,  if 
a  ship-owner  die  intestate,  and  without  heirs,  the 
corporation  of  ship-owners  succeed  to  his  estate,  to 
the  exclusion  of  the  exchequer.  The  prefect  of 
provisions  is  charged  with  the  execution  of  this  law, 
because,  asCujas  observes,  the  corps  of  ship-owners, 
whose  business  it  was  to  transport  the  necessary  sup- 
ply of  provisions  to  Rome,  were  under  the  inspec- 
tion and  controul  of  that  magistrate. 

4.  The  1 1th  book  of  the  Code  is  entitled,  de  na- 

lar  affiiir,  by  which  tliiid  persons  have  been  induced  to  enter  inte 
contracts  with  such  agent,  the  praetor  has  given  the  actio  institoria^ 
to  enforce  the  contract  against  the  master,  Inst.  lib.  4,  tit.  1 , 
%  2 T. 


Chap.  IV.  OF  EUROPE.  31$ 

Private  ships  boxind  to  transport  public  propeily. 

viculariisy  sen  naucleris  jmblicas  species  transportan- 
tibus.  The  first  title  comprises  six  laws;  one  of 
Constantine,  two  of  Arcadius  and  Honorius,  one  of 
Honorius  and  Theodosius,  and  two  of  Theodosius 
and  Valcntinian.  The  navicidarii*  or  ship-owners, 
formed  at  that  time  a  kind  of  college  or  corporation, 
whose  office  it  was  to  transport  the  goods  of  indi- 
viduals ;  but  they  were  obliged  also  to  receive  on 
board  from  the  provincial  administrations,  wheat, 
barley,  oil,  wine,  and  money,  to  carry  to  the  city,  or 
to  the  military  encampments.  In  these  laws  are 
pointed  out  their  privileges,  duties,  faults  and  pu- 
nishments. 

5.  The  next  title  is  de  pVcediis  et  omnibus  rebus 
vavkularioru7n.  It  contains  three  laws,  one  of  Va- 
lentinian  and  Valens,  another  of  the  same  emperors 


*  Azuni  translate!?  navicidaris,  patron,  or  master,  and  Molloy,  in 
his  treatise  dejur.  maritim.  et  naval,  lib.  2,  ch.  3,  §  I,  understands 
it  in  the  same  sense.  But  it  appears  from  the  note  on  this  title  of 
the  Code,  that  navicularis,  nauctcrus,  and  exercitor,  have  the  same 
signification,  and  mean  the  owner,  or  employer  of  the  ship,  the 
person  who  lets  out  the  vessel  for  hire,  and  receives  the  earnings^ 
and  who  is  said  naviculariam  urteni  excrctre.  See  Peckius  ad  ran 
nauticam,  p.  377,  and  Vinnius,  Comment,  ibid.  Naviculurii  sunt  ad 
qnos  quotidianus  quastus  nuviuvi,  she  propriarum  she  conductarum 
pert/net.  Yet,  in  some  places,  as  in  tlie  law  de  nuufra^iis,  it  signi- 
fies the  person  who  has  the  command  or  management  ot  the  ship. 
Loccenius,  dejure  marilimo,  lib.  3,  cap.  8,  calls  the  exercitor  na-cis, 
in  the  German  lan^^uage  ©djiff^sftCUnlJC,  qui  quastum  ex  nird  exer- 
ccnt,  vel  ad  quos  ohvenliones  et  reditus  navis  perveniunt,  sixe  doviini 
navis  sint,  sire  per  arersiontm  ci  dominis  conduxerint,  vel  ad  tempifs 
rdin  perpatitum T. 


$16  THE  MARITIME  LAAV        Part  L 


Private  ships  bound  to  transport  public  propei^y. 


and  of  Gratian,  and  a  third  of  Arcadius  and  Honorius. 
The  ship-owners,  at  the  time  of  supplying  provisions 
and  of  transporting  other  public  goods,  made  a  bar- 
gain with  the  exchequer  and  its  agents,  by  which 
they  bound  themselves  to  carry  them  to  the  place  of 
their  destination.  It  resulted  from  this  contract, 
that  all  the  estates  of  the  ship-owners,  either  by  an 
express,  or  tacit  hypothecation,  were  bound  to  the 
exchequer  for  the  true  performance  of  the  contract. 
The  different  effects  of  this  hypothecation  are  ex-r 
plained  under  this  title. 

6.  The  owners  of  vessels,  being  thus  obliged  to 
transport  the  supply  of  corn  and  other  articles  to 
Rome,  as  well  as  arms  and  soldiers  to  the  armies,  it 
sometimes  happened,  that  they  had  not  a  sufficient 
number  of  ships  for  the  purpose,  as,  in  such  cir- 
cumstances, masters  of  vessels  took  care  to  keep 
out  of  the  way,  so  as  not  to  be  compelled  to  the  per- 
formance of  this  duty.  A  law,  title  3,  de  navihus  non 
exciisandis,  was  therefore  passed,  declaring  that  all 
ships  of  the  burden  of  two  thousand  measures  of 
corn,  in  case  of  necessity,  might  be  forced  into  this 
service,  without  regard  to  any  privilege  of  exemption 
they  might  claim.  Under  this  title  is  comprised 
two  laws :  one  of  Arcadius  and  Honorius,  the  other 
of  Theodosius  and  Valentinian. 

7.  It  was  prohibited  to  load  any  goods  belonging 
to  individuals  on  board  of  vessels  employed  by  the 
government.     This  law  not  being  carried  into  ef? 


Chap.  IV.  OF  EUROPE.  3 1 7 


Private  goods  could  not  be  laden  on  board  of  ti'ansports. — Sliipwrccks. 


feet,  the  emperors  Arcadius  and  Honorius  were  in- 
duced to  make  another,  which  appears  under  the 
r^th  title,  of  tlie  same  book,  ve  quid  oneri  publico 
imponatur,  by  which  it  was  ordered,  that  no  person 
should  load  his  private  goods  on  board  of  vessels 
laden  with  the  goods  of  the  republic  ;  and  in  case  of 
shipwreck  on  account  of  the  vessels  being  overladen, 
besides  reimbursing  the  amount  of  damage  sustained, 
the  transgressor  of  this  law  was  liable  to  corporal  pu- 
nishment. 

8.  At  the  head  ot  the  6th  title,  de  naufragiis,  we 
find  an  excellent  law  of  Antoninus  ;*  the  second  is 
of  Valentinian  and  Valens,  the  third  is  of  Valenti- 
nian  and  Thcodosius,  the  fourth  of  Valentinian,  The- 
odosius,  and  Arcadius,  and  the  fifth  and  sixth  by 
Theodosius  and  Honorius.  The  title  sufficiently  ex- 
plains their  object. 


*  This  law  bears  the  name  of  the  emperor  Constantine.  Vinnins, 
in  a  note  on  Peckius,  p.  390,  is  inclined  to  believe  with  Contiiis, 
Gothofrcdus,  Salmasius,  and  others,  that  this  law  ought,  according 
to  some  ancient  manuscripts,  to  be  ascribed  to  Antoninus.  The 
words  of  this  excellent  law,  as  it  is  called,  are,  Si  quando  vavjva- 
gio  naus  cxpulsufiicrit  ad  lilus,  rel  si  (jiiando  ali(juam  terrain  attige- 
rit,  ad  dominos  pertineat,  fiscus  mens  scse  non  inlerponat.  Suod 
mini  jus  hahct  fiscus  in  mienacalamitate,  ut  de  re  tarn  lucluosa  cmn- 
pendium  secietur  ?  The  concluding  interrogation  does  honour  to 
the  humanity  of  the  emperor.  By  the  common  law  of  England, 
until  altered  by  Henry  I.  goods  wrecked  belonged  to  the  king. — 
Bl.ic!;«tone's  Commentaries,  vol.  J,  p.  290 T. 


.318  THE  MARITIME  LAW        Parti. 


The  law  De  Classicis. — Opinions  of  Cujas  and  otliers. 


9.  There  is  a  further  point  in  relation  to  these  sub- 
jects to  be  found  in  the  law,  tit.  12,  de  classicis.  Cu- 
jas and  Godefroy  maintain  that  the  Classici,  were 
soldiers  appointed  to  cleanse  rivers,  and  to  perform 
other  services  for  the  public.  Perezius,*  on  the  con- 
trary, affirms,  and  it  seems  to  me  with  more  reason, 
that  they  were  soldiers  attached  to  the  particular  ser- 
vice of  defending  the  maritime  armies  from  the  in- 
cursions of  enemies.  This  title  consists  of  one  law 
only,  by  Valentinian  and  Valens.  The  execution 
of  it  is  confided  to  the  prefect  of  the  east.  He  is  or- 
dered to  increase  the  number  of  the  Classici,  ex  In- 
censids  et  Adcresscentibus,  who  were  the  sons  of  the 
rowers  and  of  the  Classiciy  who  had  already  learned 
the  occupation  of  their  fathers. 

10.  It  had  been  decreed,  as  was  before  mentioned 
in  speaking  of  the  title  denavibus  nen  excusandis,  that 
all  vessels  were  bound  to  transport  the  goods  belong- 
ing to  the  state,  the  masters  of  which  were  obliged, 
whether  willing  or  not,  to  hold  themselves  in  readi- 
ness to  perform  a  service  essential  to  the  public  in- 
terest ;  but  as  it  mentions  only  sea-vessels,  and  parti- 
cularly such  as  were  of  the  burden  of  two  thousand 
measures  of  wheat,  it  might  be  doubted,  whether  it' 


*  Anthony  Perezius,  was  born  at  Alfaro,  a  small  town  in  Upper 
Niivarre,  in  1583,  and  died  in  1672.  His  Prekctiona,  or  Commen- 
taries on  the  twelve  books  of  the  Code,  were  published  in  1631. 
The  author  read  them  in  the  college  of  Louvaine,  in  Austrian  Bra- 


Oiap.  IV.  OF  EUROPE.  s  1 9 


Vessels  oi  the  Tiber  not  excused  from  public  services. — Tlie  no\-els. 


was  meant  to  include  in  these  res^ulations  those  small 
vessels  which  frequented  the  Tiber,  and  were  chief- 
ly employed  in  transporting  to  Rome  the  grain 
brought  by  larjrer  vessels  to  the  mouth  of  the  river, 
from  Egypt,  Sardinia,  and  Sicily.  These  vessels,  in 
consideration  of  the  services  rendered  to  the  capi- 
tal, might  reasonably  claim  to  be  exempted  from 
every  other  requisition.  This  appears  to  be  the 
cause  of  the  law  of  Valentinian  and  Valens,  de  nmi- 
tis  Tiheriuis,  found  in  the  27th  title  of  the  11th 
book.*  It  declares,  that  none  of  those  who  own 
vessels  navigating  the  Tiber,  shall  be  exempted 
from  the  public  services. 

11.  The  novels  of  Justinian,  which  are  the  last 
constitutions  made  by  that  emperor,  after  the  publi- 
cation of  his  second  Code,  and  which  compose  the 
fourth  and  last  part  of  the  Roman  civil  law,(293) 


bant,  where  he  filled  the  chair  of  a  professor  of  law  for  50  years.  A 
new  edition,  in  two  vols.  4to.  was  published  at  Antwerp  in  1737. 
His  works  are  considerably  esteemed T. 

*  The  law  is  the  26th  title  of  the  11  (h  book T. 

(29S)  Some  commentators  have  asserted,  that  these  Constitu- 
tions subsequently  enacted  by  Justinian,  were  called  Koxch,  be- 
cause they  established  a  new  law,  contrary  to  (he  law  of  (he  Digest 
and  Code  ;  but  this  opinion  is  not  maintainable,  since  aH  the  No- 
vels are  not  contrary  to  the  laws  of  those  two  collections.  It  may 
be  said,  with  Cujas,  that  they  have  been  so  called,  quasi  norcv  con- 
stitutionss,  et  p:>st  Codicam  Justininvi  rcpctitce  prarhrfion'fs  prowul- 
gat<r. 


320  THE  MARITIME  LAW        Part  L 

Novels  reg-u!ating-  murine  interest. 

contained  some  further  regulations  as  to  marine  in- 
terest. The  novel  106,  approves  of  the  different 
usages  in  force,  agreeably  to  which  the  creditor 
might  receive  more  than  12  per  cent,  interest  from 
his  debtor  :  which  was  rej^arded  as  lawful  interest 
in  contracts  of  bottomry.  But  by  the  novel  110, 
Justinian,  in  repealing  the  regulations  of  the  lav/ 106, 
prohibits  all  persons,  from  receiving,  under  any  pre- 
text whatsoever,  a  higher  rate  of  marine  interest  than 
12  per  cent.  These  novels  are  the  only  ones  of 
Justinian  relating  to  maritime  affairs. 

12.  The  authentic'^  navigia,  and  the  constitu- 
tion of  the  emperor  Frederick,!  de  statiitis,  et  consuc- 
tudinibiLS,  contra  ecclesiam  libertatem  editls  tollendiSy 
placed  in  the  Code  under  the  title  de  fiirtis,\  de- 
crees, that  the  ships  and  goods  of  merchants  driven 
by  tempests,  or  experiencing  any  other  misfor- 
tune, that  should  be  brought  to  shore  in  any  part  of 
the  empire,  shall  remain  the  full  and  perfect  pro- 
perty of  those  to  whom  they  belonged,  before  the 


^'  Gibbon  translates  notelhv,  wliich  he  terms  "  a  classic  adjective, 
but  a  barbarous  substantive,"  novels.  It  may  be  allowed,  accord- 
ing to  the  example  of  this  elegant  historian,  to  translate  autlientica- 
by  a  word  equally  bald.  The  Authenticce,  sea  novelLe  constitu- 
tiones,  of  Justinian,  are  divided  into  nine  Collations,  containing  50 
titles T. 

'[•The  constitutions  of  Frederick  are  to  be  found  after  the  Consv.- 
etudines  Feudorum ,  in  the  Corpus  Juris  Ciri Us T. 

t  See  Code,  lib.  G,  lit.  -J. 


thai).  IV.  OF  EUROPE.  32^1 


of  the  maritime  laws  in  the  Basilica. 


accident,  unless  they  should  be  enemies  of  the  em- 
peror, or  pirates,  under  the  pain  of  a  torfciture  of 
all  the  transgressor's  goods,  and  other  arbitrary  pe- 
nalties. Every  one  knows  in  what  manner  that 
constitution  became  inserted  in  the  Code,  and  for 
what  cause,  thirteen  constitutions  of  the  two  impe- 
rial Fredericks,  are  also  found  there.* 


ARTICLE  VI. 

Of  the  Maritime  Lazes  contained  in  the  Basilica. 

§  1 .  AFTER  the  example  of  Justinian,  the  em- 
peror Basil,  in  877,  published  a  compilation  of  laws 
in  forty  books.  Leo  VI.  his  son  and  successor, 
added  twenty  more,  all  which  laws  are  known  under 
the  name  of  the  Basilica,  and  were  the  basis  of  the 
jurisprudence  of  the  Greek  empire,  until  its  final 
destruction. 

2.  This  compilation,  published  at  Paris,  in  1647, 
by  Charles  Annibal  Fabrot,   contains,   in  the  53d 


*  The  Pandects  were  discovered  a  short  time  before  Fredcritk  I. 
invaded  Lombardy ;  the  history  of  the  transaction  of  (he  two  Fre- 
dericks, and  the  use  they  made  of  the  Pandects  and  Code  of  Justinian , 
may  be  found  in  Giannone's  Istoria  Civile  del  renno  Napoli,  vol.  2, 
lib.  12,  cap.  1.  Lib.  1 3,  cap.  3,  §  1,2,  et  3.  Lib.  ].'>,  cap.  3,  4. 
Lib.  16,  17 T. 

Voj .  r.  •>  ^ 


322'  THE  MARITIME  LAW      Part  L 

Maritime  laws  in  the  Basilica,  taken  from  the  Digest  and  Code. 

book,  several  maritime  laws,  comprising  six  titles, 
on  this  subject. 

3.  The  first  is,  De  nmiticis  obligationibusy  et  omiiis 
generis  aclionibus^  qua  nomine  naviimi,  et  omnium  in 
eis  navigaritiumi  exercitoruju,  magistrorum,  nauta- 
rum,  mercatorum,  reliquorumque,  vectorum  instituun- 
tur,  et  denaufragio.  This  title  includes  five  laws 
taken  from  the  Digest,  and  Code  of  Justinian.  The 
first  is  the  same  with  that  of  Ulpiari,  and  found  in 
the  Digest,  under  the  title  of  nautct,  caupones,  sta- 
bidarii.  The  second  is  by  the  same  lawyer,  and 
taken  from  the  first  law  of  the  title,  de  exercitoria 
actione.  The  third  is  of  Paulus,  and  founded  on  the 
6th  section  of  the  26th  law  maiidati,  in  the  Digest. 
The  fourth  is  of  Ulpian,  from  the  11th  law  of  the 
Digest,  lib.  47,  tit.  v.  furti  adversus  nautas.  And 
the  fifth  is  the  fourth  law  of  the  Code,  de  institoria^ 
et  exercitoria  actione,  lib.  4,  tit.  25. 

4.  The  second  title  is,  de  nave  vindicanda.  It 
comprehends  three  laws  of  Ulpian,  which  are,  §  1, 
law  13,  lib.  19,  tit.  2.  of  the  Digest,  locati ;  law  27,. 
§15,  digest,  lib.  9,  tit.  2,  ad  legem  aquiliam ;  and 
law  29,  §  1,  of  the  Code.  The  fourth  is  that  of 
Labeo,  and  is  extracted  from  the  law  29  of  the  Di- 
gest, de  instrumento  legato. 

5.  The  third  is,  de  naufragio,  et  jactu,  et  colla- 
tione.  It  contains  several  laws  :  the  first  and  se- 
cond, of  Paulus,  taken  from  laws  1  and  7  of  the  Di- 


Chap.  IV.  OF  EUROPE.  328 

Various  maritime  laws  in  the  Bastlica. 
-  '  "• 

gest,  ad  legem  Rhodium  ;  the  third  and  fourth  are  of 
Julian,  talvcn  from  law  6 ;  the  fifth,  of  Paul,  taken 
from  law  7  ;  the  sixth  is  of  Julian,  taken  from  law 
8  ;  the  seventh,  of  Ulpian,  taken  from  law  43,  §  6,  of 
the  Digest  defurtis  ;  the  eighth,  of  Javolenus,  taken 
from  law  21,  §  1,  Digest  de  acquirenda  possessione ; 
the  ninth,  of  Ulpian,  taken  from  law  7,  and  those 
which  folio  A  in  the  Digest,  lib.  47,  tit.  9,  de  incen- 
dio,  &c. ;  the  tenth,  of  Caius,  taken  from  law  i.  Di- 
gest ad  legem  Juliam  de  vi  privata  ;  and  the  last,  of 
Caius,  de  incendio,  &,'c. 

6.  Tlie  fourth  title  is,  de  nauticofivnore,  and  con- 
tains the  law  of  Pomponius,  1.  24,  §  3,  Digest,  lib. 
3 1 ,  rfe  legatis,  1 . 

7.  The  fifth  title,  de  naittieofivnore,  is  composed 
of  five  different  laws :  the  first  of  Modestinus,  taken 
from  law  1  of  the  Digest,  lib.  22,  tit.  2,  de  nautlco 

fanore  i  the  second  is  the  2Gth  law  of  lib.  iv.  tit,  32, 
of  the  Code  de  usuris ;  the  third  is  the  second  law 
of  lib.  iv.  tit.  Z'i ,  q'(  ihc  CoAq  de  nautico  fivnore i  the 
fourth  is  of  Ulpian,  and  is  the  5th  lawof  the  Digest, 
lib.  XX.  tit.  3,  qui  potiores  in  jyignore  i  and  the  fifth 
is  also  of  Ulpian,  the  6th  law,  §  1,  of  the  same  title 
in  the  Digest. 

8.  The  sixth  title  is,  de  piscaforibus,  et  de  pisca- 
lioney  ac  de  jure  maris.  This  title  contains  a  single 
law  of  Ulpian,  taken  from  the  13th  l^w,  §  7,  lib.  47^ 
tit.  10,  of  the  Digest  de  injur i is. 


324  THE  MARITIME  LAW        Part  I. 

Maritime  laws  of  the  emperor  Leon. 

9.  The  eighth  title  contains  forty-eight  chapters, 
which  compose  the  supposed  law  of  the  Rhodians. 
There  are  four  laws ;  one  taken  from  the  second  title 
of  the  1 1  th  book  of  the  Code ;  the  other  from  the 
fifth  title  of  the  same  book ;  the  third  and  fourth, 
from  the  1st  title  of  the  12th  book,  and  from  the  9th 
title  to  the  14th  of  the  47th  book  of  the  Digests,  in 
which  more  is  said  of  maritime  laws. 


ARTICLE  VII. 

Of  the  Laws  promulgated  by  the  Kmperor  Leon. 

§  1 .  THE  laws  and  constitutions  of  the  emperor 
Leon,  mentioned  in  the  preceding  article,  some  of 
which  relate  also  to  maritime  subjects,  merit  further 
notice. 

2.  The  56th  constitution  repeals  the  7th  section  of 
the  13th  law  of  the  Digest,  de  injiiriis,  etfamosis  li~ 
bellis,  and  fixes  the  nature  of  the  action,  which  the 
owner  of  lands,  situate  along  the  sea,  may  have  to 
prevent  persons  from  fishing  within  the  bounds  of 
his  property.  It  gives  to  every  lawful  owner  of  such 
land,  the  right  of  prohibiting  any  person  from  fishing 
on  the  banks  belonging  to  him,  without  his  per- 
mission. 

3.  The  57th  constitution  prescribes  the  distance 
into  the  sea,  at  which  the  fishermen  may  mutually 


Chap.  IV.  OF  EUROPE.  32: 


Mai'itime  constitutions  of  the  emperor  Leon. 


fix    their   stations,    and   which  is    at  365  Roman 
paces. 

4.  The  64th  constitution  annuls  the  3d  law  of  lib. 
4-8,  of  the  Digest  ad  legem  Corneliam,  de  sicariisy 
which  condemned  to  death  those  who  secreted  ef- 
fects belonging  to  a  wreck,  and  commutes  the  pu- 
nishment of  death  for  a  line  oF  fourfold  the  value  of 
the  goods. 

5.  The  102d  constitution  directs,  that  if  any  per- 
son is  desirous  of  occupying  a  station  for  fishing,  and 
has  not  land  sufficient  for  that  purpose,  he  may  com- 
pel his  neighbour  to  enter  into  partnership  with  him, 
and  to  cede  to  him  as  much  land  as  he  wants. 

6.  The  103d  constitution  declares,  that  in  case  of 
such  partnership,  the  person  who  has  thus  ceded  a 
small  portion  of  land,  shall  share  an  equal  propor- 
tion of  the  profits  of  the  fishing  with  him  who  has 
ceded  a  larger  portion,  because  the  gain  is  not,  in 
this  case,  produced  by  the  greater  or  less  quantity  of 
land  occupied  in  the  fishery,  but  by  the  industry 
and  labour  of  the  fishermen.  The  well  known 
principle  of  partnership,  that  the  profits  must  be  di- 
vided between  the  partners  in  proportion  to  the  ca- 
pital which  each  has  put  into  the  partnership  stock, 
does  not  apply  to  this  case. 


S26  THE  MARITIME  LAW        Parti. 

m  ■  —  ~^^^^^= -  rr.- 

Antiquity  of  the  Consolato  del  Mare. 

.   .   V         ■  '■    ■   -  .  ■    ..    .  ■  ,    ■  TA 

ARTICLE  VIII. 

Of  the  Laws  of  the  Consolato  del  Mare. 

§  1 .  AFTER  the  Greek  and  Roman,  the  most  an- 
cient and  the  most  celebrated  laws,  relative  to  com- 
merce and  navigation,  are  those  contained  in  the 
Collection,  so  well  known,  under  the  title  of  //  Co?i^ 
solato  del  Mare. 

2.  From  its  first  publication,  the  Consolato  del 
il/are  became  the  common  law  of  all  the  commer- 
cial nations  in  Europe,  who  submitted  to  its  authori- 
ty, because  it  comprised  all  the  laws  and  usages  of 
maritime  cities.  For  this  reason,  it  was  universally 
adopted  and  respected  as  an  invariable  law,  calcula- 
ted to  maintain  plain  dealing,  and  good  faith,  in  all 
commercial  transactions. (294) 

3.  After  the  most  irrefragable  evidence  of  the 
high  respect,  in  which  the  Consolato  del  Mare,  has 
been  held  at  all  ages,  it  is  easy  to  see  how  unfound- 
ed are  the  censures  cast  on  this  Code  by  Hubner,  in 
his  book,  de  la  saisie  des  bdtimens  neutres.  He  calls 
it  a  shapeless  mass,  and  ill-digested  collection  of  ma- 
ritime, and  positive  laws,  and  of  the  particular  or- 


(291')  Vinnius  ad  Peckium,  in  lege  1,  Dig.  ad  legem  Wiodiavi. — 
Card,  de  Luca,  de  Credito,  disc.  107,  n,  6.— Casaregis,  de  Com- 
inercio  et  Merc.  disc.  4,  n.  14,  disc.  6,  n.  14;  disc.  19,  n.  3,  and 
disc.  213,  no.  1 1  and  12. — Lubeck,  dc  jure  aiarice,  p.  110. — Ta»^- 
ga.  Ponder.  Maritime,  cap.  96,  §  3. 


Chap.  ir.  OF  EUROPE.  327 


Illfoundal  opinion  of  Hubner  concem'uig  this  Code. 


dinances  of  the  middle  and  dark  ages,  mixed 
with  a  compilation  of  local  adjudications.  "These 
ordinances,"  says  he,  •'  may  bind  the  subjects  of 
those  who  made  them ;  but,  as  they  are  only  parti- 
cular regulations,  their  authority  extends  no  further; 
they  have  now  become  obsolete,  and  are  no  longer 
binding  on  any  person."* 


*  Hubncr,  de  la  aaisie  dcs  hdtimens  neutres,  dvncours  prelitm- 
vaire,  p.  1  I .  His  words  are,  "  J'ai  mis  au  rang  cle  masses  intormes 
dans  cette  partie,  le  livre  intitule,  Le  Considat  de  la  Mer,  qu'on 
allegue  quelqucfois  comme  une  autorile,  quoiqiie  ce  ne  soit  qu'un 
amas,  ou  un  recueil  assez  mal  choisi,  de  loix  maritimes  et  posi- 
tives, et  d'ordonnances  particuliers  du  moyen  age,  ou  de  siecles 

peu  eclaires,  jointes  a  une  compilation  de  decisions  privees 

comme  elles  ne  sont  partlculieres,  elles  m'ont  jamais  pu  obliger 
qn'eux,  et  comme  elles  sont  acluellement  surann^es,  elles  n'obligent 
pas  personne.  Pour  ce  qui  regarde  les  decisions,  elles  ne  me  pa- 
roissent  absolument  bonnes  a  rien  dans  la  pratique  ;  surtout  n'etant 
pas  seulement  motiv^es,  ni  mcme  failes  dans  un  temps,  ou  Ton 
scflt  ce  que  c'est  qu'un  commerce  intelligent,  ou  la  manutention 
d'icelui."....T. 

Against  this  opinion  of  Hubnermay  be  cited  Casaregis,  Emeri- 
gon,  Valin,  and  the  authors  mentioned  in  this  learned  disquisition 
of  Azuni  concerning  the  origin  of  this  celebrated  Code.  Emerigon 
has  probably  touched  the  true  spring  of  this  petulant  decision  of 
Hiibncr.  "  Cet  auteur,"  he  says,  "  ayant  trouve,  dans  le  chapitre 
29+,  des  decisions  contraires  a  son  systeme,  a  e(e  de  mauvaise  hu- 
meur  centre  I'ouvragc  entier  ;  mais  s'il  I'eiit  examine  avec  quelque 
soin,  il  se  seroit  convaincu  que  les  decisions  qui  le  Consulat  ren- 
ferme,  sont  fondees  sur  le  droit  des  gens.  Voila  pourquoi  elles  re- 
unirentles  suffrages  des  nations;  elles  ont fourni  une  ample  matiere 
aux  rerlacteurs  de  I'ordonnance  de  1681  ;  et  malgre  I'ecorce  goth- 
'fjue,  qi'.i  les  eiiveloppe  quelquefols,  on  y  admire  I'esprit  de  justice 


328  THE  MARITIME  LAAV         Part  L 


Unworthy  motives  of  Hubner  in  his  censure  of  the  Consolato  del  Mare. 

4.  It  is  easy  to  perceive  the  weakness  of  those 
motives  which  induced  him  to  oppose  the  general 
opinion,  and  that  admiration  of  the  spirit  of  justice  and 


et  d'equite  qui  les  a   diclees." — Traite  des  assurances,  preface, 
p.S. 

In  speaking  of  the  different  collections  of  laws  made  use  of  in 
compiling  the  celebrated  Marine  Ordinance  of  France,  Valin  re- 
marks, "  Apres  les  loix  Romaines  les  plus  anciennes,  comme  le 
plus  fameuses,  que  Ton  connoisse  sur  le  fait  de  la  navigation  et  du 
commerce  maritime,  sont  celles  comprises  dans  une  collection  qui 
a  pour  titre,  il  consolato  del  7nare,  &c.  C'est  une  compilation  des 
anciennes  lois  maritimes,  servant  a  regler  la  police  de  la  navigation, 
et  tout  ce  qui  appartenoit  alors  au  commerce  dans  le  mer  du  Le- 
vant." He  adds,  that  the  original  work  being  a  mixture  of  Spa- 
nish, Catalonian,  and  Italian,  he  has  never  seen,  but  only  that  ot 
Venice  in  4to,  in  1576,  and  another  in  1539.  Hubner  says  he 
never  saw  the  original  work  in  the  Catalonian  language,  but  that 
a  translation  of  it  had  been  made  into  Castilian  by  Francisco  Biaz 
Romano,  printed  at  Valencia  in  1539,  and  the  Venetian  edition  of 
1576.  It  is  from  the  Italian  editions,  that  Casaregis  has  taken 
his  text,  which  he  has  illustrated  by  a  valuable  commentary.  The 
title  of  his  work,  which  1  have  examined,  is,  11  Consolato  del  Marc, 
colla  Spiegazione  di  Giuseppe  Maria  Casaregi,  Auditore  delta  Rota 
Florentina,  e  Consigliere  di  Giustizia  di  S.  A.  R.  In  questa  prima 
Veneta  impressionc  oltre  tutto  cib  che  s'attrova  nell'  edizione  di  Fi- 
renze,  e  di  Lucca  azgiontivi  molte  Leggi  delta  Serenissima  Repubbtica 
Venezia  attinenti  alia  materia.  Con  il  portolano  del  Mare.  Ve- 
nezia  1737. 

There  appears  to  be  no  English  translation  of  the  Consolato  del 
Mare.  Dr.  Robertson  has  published  a  translation  of  some  pas- 
sages, particularly  the  27  3d  chapter.  Some  wretched  translations 
have  been  made  into  French,  in  mentioning  which  Valin  observes, 
"  it  is  a  pity  that  a  collection  so  valuable  and  so  useful  tu  all  those 


i 


Chap.  IV.  OF  EUROPE.  329 


Emerjgon  and  others  refute  the  opinion  of  Hubner. 


equity  which  dictated  the  laws  to  be  found  in  the 
Consolato  del  Mare.  He  is  justly  reproached  by 
Emerigon,  in  the  preface  to  his  treatise  on  marine 
assurance,  that,  because  he  found  in  the  274th  chap- 
ter* of  the  Consolato,  a  decision  contrary  to  his  own 
system,  he  became  irritated  against  the  whole  work  ; 
but  had  he  read  it  with  attention,  he  would  have 
been  convinced,  that  the  doctrines  it  contains,  are 
founded  on  the  law  of  nature  and  nations,  and  de- 
serve the  respect  of  the  most  civilized  states.  Such, 
also,  is  the  opinion  of  the  most  celebrated  waiters 
on  maritime  subjects. (293) 


who  are  led  to  the  study  of  maritime  laws,  has  not  hitherto  met 
with  a  better  translation  ;"and  he  adds,  "  that  a  celebrated  lawyer 
(Emerigon)  had  commenced  a  new  translation  enriched  with  notes, 
to  illustrate  the  text,  and  with  observations  relative  to  the  regula- 
tions of  the  ordinance,  and  the  existing  usages  ol  commerce." — 
Whether  this  translation  was  ever  finished  by  his  learned,  liberal, 
and  candid  friend,  I  have  not  been  able  to  learn.  Considering  the 
importance  attached  to  this  celebrated  work,  by  all  the  maritime 
courts  of  Europe,  it  is  to  be  wished,  that  Dr.  Robinson  would  give 
an  entire  translation  of  it  into  the  English  language T. 

*  This  in  some  editions  is  the  273d,  and  in  others,  the  275tli 
chapter T. 

(295)  Vinnius,  in  Peck,  ad  leg.  1,  de  lege  Rhodia,  Dig.  p.  190, 
speaks  in  these  terms  ;  Apparet  quoque  ex  scriptoribus,  qua  His- 
panis,  qu(e  Italis,  Gallis  et  Anglis,  bonam  partem  legem,  quibus  hodie 
ad  res  maritimas  iiiuntur,  dempromptam  esse  ex  libro  consulatus,  qui 
irtale  S.  Ludoxki  scripius  dicitur.  Casaregis,  de  Cotnmercio,  disc. 
2J3,  n.  12.  also  observes,   Consulatus  maris  ii  inateriis  inarHimi»,, 

Vol.  I.  Tf 


330  THE  MARITIME  LAW        Part  L 


The  Consolato  contains  the  best  maritime  laws  cf  tlie  age. 

5.  The  language  used  by  some  learned  christian 
bishops  to  the  etnperor  Julian,  the  apostate,  might 
be  applied  to  Mr.  Hubner.  That  prince,  speaking 
with  contempt  of  the  doctrine  of  Apoliinaris,  they 
answered,  "  You  have  read,  hut  you  have  not  under- 
stood ;  for,  if  you  had  understood,  you  never  zvould 
have  censured  him.^'* 

6.  The  Consolato  del  Mare  comprises  29-1-  chap- 
ters. From  the  1st  to  the  44th  chapter,  it  treats 
only  of  the  forms  of  judicial  proceedings  in  the  court, 
and  by  the  consuls  of  Valencia. (296)  In  the  sub- 
sequent chapters  will  be  found  the  best  laws  that 
existed,  and  which  were  settled,  at  the  time,  by 
men  of  great  experience,  and  consummate  prudence, 
who,  with  no  other  guide  than  reason  and  custom, 
made  those  excellent  regulations  concerning  naviga- 


tanquam  universalis  consiietudo  hahens  rim  legis,  inviolabiliter  atten- 
denda,  est  apiid  omnes  provincias  et  nationes.  Lubeck,  de  jure 
avariai,  p.  1  10,  says  also,  Cfcttrum  07)iniuinfert  gentium  leges  et  con- 
suetudines  maritimas  collectas,  et  in  cceieris  capitibus  dispositas,  ri- 
dere  licet,  in  eleguntissimo  libra,  qui  vacatur  Consulatus  Maris,  ex- 
lingua  Italicu  in  Belgicain  translatus. 

*  I^gisti,  sed  non  intellexisti ;  si  enimintellexisses,  naji  improbasses. 
ApoUinaris  was  bishop  of  Laodicea.  He  maintained  the  doctrine 
of  the  divine  incarnation.  See  Masheim's  Ecclesiastical  Histoiy, 
Vol  I.  p.  422 T. 

(29f>)  In  quoting  the  Consolato,  I  have  followed  the  edition  of 
Venice,  with  the  explication  of  Casaregis,  printed  in  the  third  vo- 
lume of  his  work?,  in  folio. 


Chap.  IV.  OF  EUROPE. 


Origin  of  the  name  Consul  among  merchants. 


tion,  and  maritime  contracts.  As  we  proceed  in  the 
•^examination  of  this  valuable  book,  we  observe  in 
what  manner  the  master  or  captain  of  a  vessel  ought 
to  conduct  towards  his  sailors,  the  passengers,  the 
owners  of  the  vessel  and  the  cargo,  and  what  are 
their  respective  obligations  towards  each  other. 

7.  The  name  of  consul,  so  common  among  the 
Romans,  was  given,  in  the  times  of  low  Latin,  and 
during  the  middle  ages,  to  different  magistrates  of 
other  nations.  This  appellation  was  conferred 
more  particularly  on  those  persons  who,  in  seaports 
and  large  commercial  places,  were  appointed  to  de- 
fend and  protect  the  rights  and  property  of  mer- 
chants, settled,  or  residing  in  foreign  countries.  A 
charter  of  James,  king  of  Arragon,  in  1268,  by 
which  he  grants  to  the  inhabitants  of  Barcelona,  the 
power  of  choosing  consuls  in  countries  beyond  sea, 
alludes  to  this  title. (297)  Guido,  king  of  Jerusa- 
lem, about  the  year  1190,  had  already  given  to  the 
people  of  Marseilles,  the  right  of  electing  at  Accon^ 
viscountSy  or  consuls,  of  their  nation,  before  whom 
all  disputes  arising  between  them  and  foreigners, 
were  to  be  brought  for  decision.  Ducange,  in 
his  glossary y  at  the  word  consul,  makes  the  same  re- 
mark, and  cites,  in  proof,  the  Consolato  del  Mare, 
printed  at  Venice,  in  1576,  in  the  Italian  language. 
He  relates,  that  the  magistrate  of  Pisa,  who  resided 


(297)  Collection.  Diplomat.  Lspanola,  n.  QIO,  p.  560. 


532  THE  MARITIME  LAW         Pari  I. 


OfRce  of  consul  among  the  Pisans  and  others. 


at  Constantinople,  was  called  consul,  and  at  Venice, 
bajolo.{29S)  It  maybe  seen,  besides,  in  the  chroni- 
cles of  Pisa,  that  there  existed,  before  the  tenth 
century,    a   supreme    magistracy    in  that   republic, 

under  the  name  of  Consuls,  or  Consuls  de  Vart  de 
la  mer. 

8.  Among  the  Saracens,  the  admiral  was  the  su- 
preme director  of  every  thing  concerning  the  marine, 
or  naval  armaments.  This  dignity  was,  at  that 
time,  termed  the  consulate,  and  we  find  in  the  eu- 
logy of  Toledo,  that  this  expression  is  used  in  the 
same  sense. 

9.  In  turning  over  the  laws  of  the  Visigoths,(299) 
it  will  be  seen  that  the  controversies  which  arose 
among  foreign  merchants,  were  decided  by  their 
own  judges,  called  at  that  time  Tolonarii,  or  the 
Bailiffs  and  Priors  of  merchants. (300)  In  the 
commercial  towns  of   the   Hanseatic  confederacy. 


(298)  Charta  Guidonis  Res;is  Ilierosolym.  anni  1 190,  apud  Gues- 
•nejam  in  Aimalibus,  Massil.  Codinus  de  officiis,  cap.  7.  n.  9,  and 
Gregoras  observes,  Pisanorian  magistratum  qui  Constantinopoti  de- 
gehant  Consulem  appellatum,  qui  apud  Venetos  Bajulus  dicebatur. 

(299)  Lib.  11,  tit.  3,  §  ibid.  Si  trans?nartni  negociatores ,  intei^ 
se  causam  habuerint,  nullus  de  sedibus  Visigolhce  regum  eos  audire 
prcesumeret,  nisi  tantum  modo  suis  legibus  audirentur  apud  Tolona- 
rios  suos. 

(300)  Marquardus,  de  Jure  Mercat.  lib.  3.  cap.  ^,\\.  16. 


Chajj.  IV.  OF  EUROPE.  333 


The  word  consulate,  de?iotes  the  jurisdiction,  the  laws,  8;c. 


they  were  called  Lords.(301.)  Dusfrcne(302)  ob- 
serves, that  formerly  in  France,  among  the  dignities 
of  the  palace,  was  one  called  in  Latin,  Mercati 
Palatii  Tolouearium,  the  peculiar  duty  of  which  was 
to  preside  over  the  Pilots*  and  to  decide  all  causes 
which  arose  concerning  certain  maritime  affairs. 

10.  For  these  reasons,  the  jurisdiction,  bclonrinir 
to  these  maritime  magistrates,  was  called  the  con- 
sulate, a  name  which  it  still  bears  in  many  maritime 
towns  of  Spain  and  Italy.  The  name  of  consulate 
is  also  given  to  the  laws,  which  served  as  rules  of 
decision  for  those  who  resorted  to  this  jurisdiction  ; 
and  it  is  extended,  also,  to  the  book  containing  those 
laws. 

1 1 .  Learned  men  are  much  surprised  that  we 
should  remain  to  this  day,  ignorant  of  the  time 
when  this  precious  compilation  was  formed,  by  whom 
it  was  made,  and,  in  short,  what  nation  first  publish- 


(301)  Marquard,  loc.  cit.  n.  33. 

(302)  Dufresne,  Glos.  Med.  et  Inf.  Latin,  torn.  3,  p.  1081. 

*  Pilots,  or  steersmen,  were  particular  officers  cmploved  to  ma- 
nage the  helm  and  direct  the  ship's  course  din-ing  the  -coyage. 
Every  ship  had  one  of  these  necessary  officers  on  board  ;  but  since 
the  great  experience,  and  knowledge  of  navigation,  in  modern 
times,  the  master,  or  some  of  his  crew,  usually  manage  the  licira, 
and  the  name  Pilot  is  now  applied  to  those  persons  along  the  coast, 
who  are  taken  on  board  of  vessels,  to  conduct  them  into  port,  or 
through  channels,  straits,  or  dangerous  passages. ...T. 


334  THE  MARITIME  LAAV        Part  I. 

Opinions  of  Vinnius  and  Arthur  Duck,  as  to  the  Consolato. 

ed  the  Consolato  del  Mare,  under  which  title,  it  af- 
terwards acquired  such  high  authority,  as  to  become 
respected  by  all  the  world,  not  by  the  force  of  any 
ordinance  imposing  a  sanction  for  its  observance, 
but  solely  on  account  of  the  intrinsic  excellence  of 
the  laws  it  contained. 

12.  Arnold  Vinnius,  in  his  commentary  on  Pec- 
kills,  on  the  title  of  the  Rhodian  law  dejactu,  and 
in  his  dedication,  remarks,  "  that  the  greater  part  of 
the  laws  in  use  relative  to  maritime  disputes,  among 
the  Italians,  Spanish,  French,  and  English,  have 
been  according  to  their  respective  writers,  extract- 
ed from  the  consolato,  said  to  have  been  composed 
in  the  time  ot  Saint  Lewis,  king  of  France." 


'& 


13.  Andre  Crusius,  in  the  13th  chapter  of  his 
book,  entitled,  Commentaire,  Historique,  Philoso- 
phique,  Juridique,  on  the  law  9,  Dig.  ad  legem  Rho- 
diani  dejactu,  in  discussing  the  laws  relative  to  ma- 
ritime affairs,  makes  the  same  remark  concerning 
the  Consolato  del  Mare,  and  cites  Vinnius  and  Ar- 
thur Duck.*  This  Englishman  observes,  on  this 
subject,  that,  in  England,  xht  Consolato  del  Mai^e, 


*  Arthur  Duck,  a  learned  civilian,  was  born  in  1580,  and  died 
in  164-9.  He  was  master  of  the  Court  of  Requests  in  London. 
He  wrote  a  work  entitled,  De  Usu  et  Authoritate  Juris  Chilis  Ro- 
viannrum  in  Dominiis  Principum  Cliristianorum,  and  is  probably  the 
same  winch  contains  the  opinion  referred  to  by  Crusius,,. ,T. 


Cliap.  IF.  OF  EUROPE.  S35 

opinions  of  Grotius,  Marquardus,  and  Targa,  as  to  the  Consolato. 

has  as  much  authority  as  the  Roman  law,  or  any  of 
the  particular  laws  of  his  nation.* 

14.  Grotius(303)  and  Marquardus,(304)  believe 
this  collection  to  have  been  made  in  the  time  of  the 
Crusades,  by  order  of  the  ancient  kings  of  Arra- 
gon,  and  that  it  was  taken  from  the  naval  ordinances 
published  by  the  Greek  emperors,  the  emperors  of 
Germany,  the  kings  of  France,  Syria,  Cyprus,  Ma- 
jorca, Minorca,  and  the  republics  of  Venice  and 
Genoa. 

15.  Targa,  \n  his  Ponder azioiii  Mm-it time,  chap. 
92,  and  Casaregis,  in  his  Niiova  Sfnegazionc  del 
Consolato  del  Mare,  published  at  Venice,  in  17S7, 
asserts,  in  the  advertisement,  that  this  compilation 
was  the  work  of  the  ancient  kings  of  Arragon  ; 
that  it  was  written  in  their  language  ;  that,  having 
been  afterwards  adopted  by  the  most  commercial 
nations  of  Europe,  each  translated  it  into  its  own 


*  This  is  true  only  in  respect  (o  the  English  court  of  admiralty, 
which,  proceeding  according  to  the  laws  of  nations,  regards  the 
Roman  law,  and  those  Codes  of  maritiine  law  which  have  been 
adopted  by  the  commercial  nations  of  Europe,  as  forming  a  part  ol 
the  law  of  nations.  See  Bbcksfone's  Commentaries,  Vol.  I.  p. 
79,  SO,  Vol.  III.  p.  69,  and  Vol.  IV.  p.  C7 T. 

(303)  Grotius  Dejure  Belli  ac  Pads,  lib.  3,  cap.  1,  §  5,  in  alli- 
gat.  n.  6. 

(30 1-)  Marquardus,  Dejure  Mercatorum,  cap.  5,  n.  C>9. 


336  THE  MARITIME  LAW        ^artl. 


opinion  of  Casai'egis  examined. 


language.*  He  supports  this  opinion  by  the  autho- 
rity of  no  writer,  nor  by  any  historical  fact,  though 
he  wrote  eight  centuries  after  the  publication  of  the 
Consolato,  according  to  his  own  assertion.  He  has 
not  even  examined,  whether  what  he  has  advanced 
agrees  with  what  is  contained  in  the  preface  placed 
at  the  head  of  the  book. 

16.  The  preface^  containing  the  names  of  so 
many  sovereigns  who  recognised  the  Consolato,  at 
the  period  of  its  reception,  will  serve  as  a  guide  in 
our  researches,  to  discover  the  time  when,  and  by 
"whom,  this  compilation  w^as  probably  made ;  for 
no  person  has  yet  arrived  at  certainty  on  this  sub- 
ject. It  will  be  easily  seen,  that  this  very  pre- 
face is  entirely  spurious,  and  apocryphal,  when, 
with  the  aid  of  history,  we  examine  it  with  critical 
attention,  as  I  shall  proceed  to  do  in  the  following 
pages. 


*  "  Basti  il  dire,  che  appena  fu  egli  in  qiiella  lor  lingua  per  or- 
dine  degli  antichi  Re  d'Arragona,  compilato  la  prima  volta,  che, 
come  fondamento,  e  norma  della  contrattazlone  marittima,  abbrac- 
ciato  venhe  tra  pochi  anni  da  tutte  le  nazioni  d'Europa  piii  eser- 
citate  nel  traffico,  nel  sue  proprio  idioma  ciascheduno  trasportan- 
dolo,  e  di  mano  in  mano  poi  per  piu  d'otto  secoli  segiutato  fino  a'  di 
nostri,  ne'  quali  in  vigore  eziando  si  mantiene  generalmcnte." — 
This  opinion  of  Casaregis,  if  not  correct  as  to  the  original  lan- 
guage in  which  the  Consolato  first  appeared,  is  well  founded  as  it 
respects  its  universal  reception  among  all  the  commercial  people 
of  Europe,  among  whom  it  constituted  a  part  of  the  maritime  law 
of  nations, ...T. 


Chap,  IV.  OF  EUROPE.  337 

Preface  to  tlie  Consolato  examined. 

17.  The  author  of  the  preface,*  just  mentioned, 
begins,  with  saying,  that  the  Consolato  was  first  ac- 
knowledged at  Rome,  in  March,  1075,  at  Saint  John 
de  Lateran,  where  the  Romans  swore  to  its  perpetual 
observance. f  He  does  not,  however,  as  he  has  done 
in  speaking  of  other  countries,  mention  the  name  of 
the  person  who  sanctioned  this  pubHc  act  of  accept- 
ance. It  is  known,  besides,  that  the  chair  of  St. 
Peter,  was  at  that  time,  filled  by  that  resolute  pre- 
late, St.  Gregory  VII,  jealous  to  excess  of  his  sove- 
reign authority,  and  who  certainly  would  not  have 
permitted  the  Romans  to  sanction  a  new  law,  with- 
out his  intervention  and  authority. 

18.  He,  next,  declares  the  Consolato  to  have 
been  received  at  Acre  in  the  year  1111,  by  king 
Louis,  and  the  Count  of  Thoulouse,  on  their  way  to 
Jerusalem  jj  and  if  the  preface  to  these  laws  is  to 
be  credited,  the  history  of  the  time  is  entirely  over- 
thrown. In  that  year  Louis  VI  reigned  in  France, 
who   never  dreamed  of   making  a  voyage  to  the 


*  This  Preface  is  entitled,  Ove,  e  quando  furono  concessi  li  pre- 
senti  Capitoli  e  Ordinazioni T. 

f  "  Roma.  L'anno,  d'lncarnation  di  Crislo,  1075,  a  Cal.  dt 
Marzo  fur  concessi  in  Roma  in  S.  Gio.  Laterano,  et  giurati  da  Ro- 
mani  d'ossevargli  senipre.^' — Preface  to  the  Consolato T. 

+  •'  Acri.  L'anno  1111,  a  Cal.  di  Seplembrc  fur  concessi  in 
Acri  nel  passagio  di  Gierusalem  per  il  Re  Lodovico,  et  per  il 
Conte  di  Tolosa,  ct  giurorno  osserrali  sempre."— Ib.,..T. 

Vor.  I.  U  11 


3S»  THE  MARITIME  LAW        Part  L 

Consolato  not  adopted  by  Louis  VI.  or  VII.  of  France. 

holy  land.  The  second  crusade  was  in  the  time  of 
his  son  Louis  VII,  who  embarked  in  the  year  1 147, 
to  proceed  to  the  Levant.  If  this  be  the  Louis, 
who  approved  of  the  Consolato  del  Mare,  at  Acre, 
as  mentioned  in  the  preface,  he  could  not  have  done 
it  in  1 1 1 1 J  for  he  was  not  then  in  existence,  since 
he  was  born  1118.  It  is  evident,  therefore,  that  the 
author  is  mistaken,  in  this  date,  as  well  as  in  the  chro- 
nology he  has  used  in  regard  to  the  other  nations^ 
who  subsequently  adopted  these  laws. 

19.  But  supposing  Louis  VII  to  be  the  person 
here  intended,  it  is  not  easy  to  discover  any  reason  he 
could  have  for  approving  of  the  Consolato^  at  Acre, 
either  for  the  use  of  France,  or  of  the  peopk  of  the 
East.  It  could  not  concern  France,  since  the  au- 
thor himself  says,  it  was  adopted  at  Paris,  in  1250 ; 
nor  could  it  be  intended  for  the  Levant,  for  Louis 
had  no  right  to  execute  there,  so  important  an  act  of 
jurisdiction.  Baldwin  III,  was,  at  that  time,  king 
of  Jerusalem.  It  is  known,  that  Louis  made  the 
crusade  with  Conrad,  emperor  of  Germany,  and, 
that,  in  1148,  he  held,  at  Acre,  a  general  diet,  to 
deliberate  on  the  enterprise  they  were  about  to  un- 
dertake against  the  infidels.  Wiiliam  de  Tours,  who 
relates  these  facts,  says,  that  Conrad,  Louis,  and 
Baldwin,  met  there  with  their  respective  foUov^ers  ; 
and  he  is  not  only  silent  as  to  the  supposed  adoption 
of  these  laws  by  Louis,  but  he  gives  it  to  be  under- 
stood, that  these  navai  laws  for  the  Levant  could  not 
have  been  sanctioned  by  the  approbation  of  Loui? 
alone. 


Ckap.  IV.  OF  EUROPE.  33i> 

Consolato  not  adopted  by  the  Pisans  at  Majorca. 

■  ^  ■  » 

20.  In  the  assembly  of  Acre,  were  different  princes, 
slnd  lords,  who  accompanied  the  three  sovereigns. — 
William  of  Tours,  who  gives  us  their  names,  makes 
no  mention  of  the  count  of  Thoulouse.  This  prince, 
who  was  probably  count  Alphonso,  could  not  have 
been  there,  nor  have  taken  any  part  in  the  expedi- 
tion, since  he  died  at  Ca:sarea,  in  1147,  and,  conse- 
quently, before  the  general  assembly  was  held  at 
Acre,  so  that  he  could  not  have  met  Louis,  in  that 
city  ;  facts  which  entirely  destroy  what  this  author 
advances  in  his  preface. 

21.  From  Acre  he  proceeds  to  Majorca.*  He 
states,  that  in  the  year  1112,  the  Pisans  had  ac- 
cepted the  Consolato  at  that  place  ;  and  that  thev 
took  an  oath  for  its  perpetual  observance  ;  but  histo- 
ry contradicts  the  date  here  given.  It  is  a  fact,  that 
at  that  time  the  Moors  were  in  possession  of  the  Ba- 
learean  Islands  of  Minorca,  Majorca,  and  Yvica,  or 
Eviza,  and  had  it  in  their  power  to  disturb  all  the 
coasts  of  Italy  by  their  piracies.  The  Pisans,  at  that 
time,  celebrated  for  their  skill  in  navigation,  and 
powerful  at  sea,  excited  by  Pope  Pascal  II,  endea- 
voured to  expel  the  pirates  from  tl-ose  islands.  Hav- 
ing, in  the  year  1114,  made  themselves  masters  of 
Yvica,  they  undertook  the  siege  of  Majorca,  which 
they  took  in  the  following  year,  1115.  They  de- 
stroyed all  the  habitations,  in  order  to  deprive  the 


*  "  Majorca.     L'anno  1112,  fur  concessi  in  Majorca  per  i  Pi- 
saiii,  et  giurorono  d'osserrali  semprc," — Ib....T. 


340  THE  MARITIME  LAW        Parti. 

Time  of  the  Pisan  conquest  of  Majorca. 

African  pirates  of  this  place  of  resort,  as  appears 
from  the  chronicles  of  Pisa,  mentioned  in  Muratori, 
vol.  6.  Though  Ughelli,^  in  the  title  of  a  poem  on 
this  war,  composed  by  Laurentuis  Vernense,  or 
d'Verna,  deaeon  to  Peter,  archbishop  of  Pisa,  and 
a  contemporary  author,  says,  that  this  happened  in 
1114;  yet  Muratori  proves,  by  the  most  authentic 
evidence,  that  this  event  took  place  in  the  year  1115, 
as  above  mentioned ;  and  he  adds,  that  according  to 
Ughelli  himself,  this  expedition  v^^as  undertaken 
and  terminated  in  the  years  1113  and  1114,  of  the 
christian  aera.(305)  Moreover,  the  learned  Fabro- 
ni(306)   places  this  expedition   in  1113  and  1114. 

*  Ughelli,  a  native  of  Florence,  was  born  in  1595....T. 

(305)  The  chronicle  taken  from  a  manuscript  of  de  Lucca,  {Mu- 
rat,  Rer.  Ital.  torn.  6.)  speaking  of  the  losses  suffered  by  the  Sara- 
cens, in  this  expedition  of  the  Pisans  in  1114  and  1115,  says,  Pi- 
sani  ultra  quinquaginta  Saracenorum  millia  occiderunt.  Volterranus, 
afterwards,  adds,  (Geog.  lib.  5,  de  rebus  Pisan,)  Sed  et  Rege  Sara- 
ceno  Majoricce  interfecto  Reginam  captmn  cum  parvo  Jilio  Pisas,  in 
iriumphum  duxere,  ubi  ab  urbis  Prcesule  christianus ,  simul  et  Cano- 
nicus  S.  Maria,  factus  in  paternum  regnu?n  diiniilitur.  Ughelli,  in 
his  Italia  Sacra,  lib.  3,  says,  that  the  mother  of  the  young  captive 
prince,  called  Lambert,  became  a  Christian.  Christiana  devota 
SanctcB  Maria  permansit.  She  died  at  Pisa.  On  her  tomb  is  the 
following  epitaph : 

Regia  me  proles  genuit,  Pisce  rapuerunt, 

His  ego  cum  nato  bellica  prceda  fuit , 
MajoriccE  regnum  tenui,  nunc  condita  saxo, 

2uod  cernis,jaceofinepotita  meo. 

(306)  Eloge  de  Pierre  Moriconi,  par  M.  Ange  Falroni,  note  iSi. 


Chap.  IV.  OF  EUROPE.  341 

The  Pisan  chronicles  do  not  mention  the  Consolato  in  1118. 

From  all  which  it  clearly  follows,  that  the  Pisans  did 
not  adopt  the  Consolato,  at  Majorca,  in  the  year 
1112,  since  that  island  was  then  in  the  power  of 
the  Moors. 

22.  One  of  the  Pisan  chronicles  mentions,  that 
after  driving  out  the  Moors  from  that  island,  the  Pi- 
sans destroyed  every  thing,  and  having  divided  the 
spoils,  they  returned  to  their  own  country,  loaded 
with  glory  and  riches.  There  could  be  no  reason, 
then,  for  leaving  maritime  laws  in  a  countrv  laid 
waste,  and  where  there  were  no  inhabitants  left  to 
observe  them.  On  the  other  hand,  these  laws  had 
not  yet  been  published  at  Pisa.  If  we  follow  the 
dates  pointed  out  by  the  author  of  the  preface,  it 
would  appear  that  the  Pisans  were  desirous  to  esta- 
blish a  system  of  laws  in  another  place,  before  they 
had  been  promulgated  in  their  own  country.  This 
is  the  less  credible,  as  Vernense,  who  describes  all 
the  minute  circumstances  of  this  war,  although  he 
has  spoken  of  this  period,  mentions  not  a  word  of 
this  fact,  which  certainly  deserved  to  be  noticed,  as 
a  proof  of  a  sovereignty,  acquired  by  force  of  arms. 
Other  Pisan  chronicles  make  no  mention  of  these 
laws,  while  at  the  same  time,  they  pass  over  in  silence, 
the  fact,  that  they  had  been  received  at  Pisa  in  1118. 
at  the  church  o{  St.  Pictro  del  Mare,  during  the  ma- 
gistracy of  Ambrose  Migliari,  the  person  who  ad- 
ministered the  oath  for  their  observance,  as  the  au- 
thor of  this  preface  pretends.* 

■'•■  "Pisa.     L'anno  1118.  fur  concessi  in  Pi'^a  in  S.  Pctro  ihi 


342  THE  MARITIME  LAW         Part  I. 


Capture  of  Conaantinople  by  the  Latins,  in  1204. 

23.  In  regard  to  Constantinople,*  it  is  pretended 
that  the  commune  of  Venice,  and  king  John,  imme- 
diately after  expelling  the  Greeks  trom  that  city, 
took  an  oath,  in  the  year  1215,  in  the  church  of  St. 
Sophia,  to  observe  these  laws.  Constantinople  was 
twice  taken  by  the  Latins;  the  first  time,  in  1203, 
when  the  French  and  Venetian  crusaders,  having 
become  masters  of  the  city,  deprived  Alexis  An- 
gelas of  his  throne,  which  they  seized,  and  restored 
Isaac  Angelas,  and  his  son  Alexis.  This  prince, 
however,  was  regarded  by  the  Greeks  with  a  jea- 
lous eye,  as  he  had  arrived  at  the  throne,  by  the  aid 
of  the  Latins.  The  disputes  which  arose  on  this 
subject,  between  the  Greek  nobles  and  the  people, 
were  the  reason  why  the  former  elected  a  person  of 
the  name  of  Constantine,  and  the  latter  another 
Alexis,  surnamed  Mourzoufle.  In  the  midst  of 
these  agitations,  the  Latins  came  to  a  resolution  to 
sieze  on  Constantinople,  and  to  make  it  the  seat  of 
their  power.  They  became  masters  of  it  in  1201-, 
and  they  afterwards  divided  the  Empire.  The  Ve- 
netians had  several  provinces,  islands,  and  cities, 
enumerated  in  the  memoirs,  annexed  to  the  chroni- 


Mare  in  potesta  d'Ambrosio  MigUari,  e  giiiro  osservarli."    Preface 
to  the  Con)iolato....T. 

*  "  Constantinopoli.  L'anno  1215,  fur  concessi  per  il  commun 
di  Venetia  In  Constantinole,  nella  cliiesa  di  S,  Soffia,  per  il  Re  Gio- 
vanni inconlinente  che  fur  cacciati  i  Greci,  giiiro  d'osservarli  sem- 
pre." — Ib....T. 


Chap.  IV.  OF  EUROPE.  343 

The  Conaolato  was  not  adopted  at  Constantinople  in  1215. 

cle  of  Andreas  Dandolo.*  They  elected  a  Latin 
emperor,  Baldwin,  count  of  Flanders,  who,  in  1206, 
was  succeeded  by  his  brother  Henry,  count  of  Flan- 
ders, who  died  in  1216.(307)t 

24.  On  comparing  these  historical  sketches  with 
what  is  related  by  the  author  of  the  preface  to  the 
Consolato,  concerning  its  reception  at  Constantino- 
ple, the  gross  error  into  which  he  has  fallen  will  be 
manifest ;  since  the  taking  of  that  city  does  not  cor- 
respond with  the  date  he  has  given.  It  happened, 
as  appears,  in  the  years  1203  and  1204,  while  the 
author  places  it  in  the  year  1215.  He  says,  that 
the  republic  of  Venice  accepted  these  laws  at  Con- 
stantinople ;  but  why  not  at  Venice }  By  whom 
were  they  presented  to  the  Venetians  in  that  capital 
of  the  empire  ?  The  most  accurate  historians  make 
no  mention  of  the  fact.    Sandi(308)  declares,  on  the 


*  Andreas  Dandolo,  is  the  historian  of  Venice  for  this  period. 
Henry  Dandolo  was  then  Doge  of  Venice,  and  one  of  the  most 
illustrious  characters  of  the  age.  He  commanded  the  Venetian 
forces,  during  the  united  crusade  of  the  French  and  Venetians.  He 
was  aged  eighty-four,  when  he  was  elected  Doge,  and  died  at 
the  advanced  age  of  ninety-seven.  Gibbon  throws  some  doubt 
on  this  remarkable  longevity.    Decline  and  Fall,  ch.  60,  note....T. 

(307)  See  L'Arl  de  verifier  les  dates,  art.  Constantinople. 

-f  The  English  reader  is  referred  to  the  COlh  and  6 1st  chapter  ot" 
Gibbon's  Decline  and  Fall....T. 

(3G3)  Sandi,  Storia  Ciiilc  di  Venezia,  torn.  1,  liv.  4,  chap.  7,  p 

ues. 


344  THE  MARITIME  LAW      Part  L 

Other  particulars  to  shew  the  falsity  of  the  preface  to  the  Consolato. 

contrary,  that  the  most  ancient  and  authentic  Code, 
printed  at  Venice,  was  unknown  before  the  year 
1252  ;  and  he  adds,  that  the  repubHc  of  Venice,  to 
insure  its  observance,  appointed  some  of  its  most 
zealous  citizens  to  carry  it  into  execution.  It  being 
then  an  undeniable  fact,  that  Constantinople  was 
taken  in  1204,  it  is  impossible  to  make  that  event 
agree  with  the  date  of  the  acceptance  of  the  Conso- 
latOy  in  1215  i  since  the  city  was  at  that  time  under 
the  government  of  Henry,  and  the  Venetians  re- 
served nothing  more  than  the  right  of  electing  a 
Latin  patriarch. 

25.  The  king  John,  who,  according  to  the  author 
of  the  preface,  took  an  oath,  in  the  same  place,  and 
at  the  same  time,  to  observe  these  laws,  will  serve 
still  more  to  expose  this  imposture.  There  is  no 
mention  made  of  this  prince  in  any  history  j  but 
merely  of  Giovanniccio  (or  Carlo-John,)  king  of  the 
Bulgarians,  who,  in  1205,  with  the  assistance  of  the 
Greeks,  who  had  every  where  revolted,  made  him- 
self master  of  Constantinople,  and  took  the  emperor 
Baldwin  prisoner.  As  this  prince  had  no  con- 
nexion with  the  fact  stated  in  the  preface,  or  with 
the  period  of  time  there  mentioned,  there  is  reason 
to  believe,  that  this  king  John  is  a  person  of  the  au- 
thor's own  creation  ;  a  mere  imaginary  sovereign. 

26.  The  falsity  of  the  account  of  the  author  of  this 
preface  may  be  more  clearly  seen,  from  the  supposed 


Vhap.  IV.  OF  EUROPE.  345 

T.-  '  r  ■; 

Further  evidence  of  tlie  mistakes  in  tlie  Preface  to  the  Consolato. 

'  ■  ■  ■  ■  ■  "W 

acceptance  of  the  Consolato  by  a  count  in  Aldma- 
nia*  Does  the  word  Alamania  signify  all  Germa- 
ny ?  It  was  not,  at  that  time,  subject  to  a  count,  or 
single  sovereign  j  and  the  acceptance  of  the  Con- 
solato by  a  count,  could  not  be  said  to  be  by  the 
whole  of  Germany.  If  a  part  only  was  intended,  it 
would  have  been  necessary  to  point  out  what  part. 
Besides,  he  speaks  of  a  count,  without  mentioning 
his  name,  or  surname.  Frederick  II  was,  at  that 
timc^  emperor  of  Germany  ;  and  as  it  was  not  him, 
it  must  have  been  some  fabulous  count,  whom  he 
supposes  to  have  approved  of  these  laws  in  Ger- 
many. 

27.  It  is  further  pretended,  that  the  Consolato  was 
adopted  by  the  emperor  Frederick,  at  Messina,f  in 
the  year  1225,  at  the  church  of  St.  Maria  Nuova,  in 
presence  of  the  bi.^hop  of  Catalonia.  It  is  true,  that 
Frederick  was,  at  that  time,  in  Sicily;  but  history, 
and  the  Sicilian  chronicles,  arc  silent  as  to  this  very 
important  fact.  Richard  de  St.  Germain,  a  contem- 
porary writer,  says  not  a  word  about  it,  while  he  re- 
lates the  most  minute  circumstances  that  took  place 


*  "  Almania.  L'anno  1 22  i,  fur  concessi  in  Almania  per  il 
Conte,  et  giuoro  osservali  seinpre." — Ibid....T. 

+  "  Messina.  L'anno  1225  fur  concessi  in  Messina  nella  Chiesa 
fli  S.  Maria  Nuova  in  prcsentia  del  Vescovio  di  Catania  per  Fre- 
Jcrico  Impcrator  d'Alniania,  e  giuro  di  osservali." — Ibid....T. 

Vol.  I.  X  X 


346  THE  MARITIME  LAW        Part  L 

Error  in  the  Preface  to  the  Consolato  as  to  its  adoption  at  Paris. 

at  that  period.  In  the  same  year,  Frederick  passed 
from  Sicily  to  the  kingdom  of  Naples,  and,  according 
to  Richard  de  St.  Germain,  celebrated,  at  Brinde, 
his  nuptials  with  Jolante,  daughter  of  the  king  of 
Jerusalem ;  though  Sigonius,  and  other  historians 
assert,  that  they  were  celebrated  at  Rome.  They 
do  not  mention  whether  Frederick,  though  in  Sicily, 
(where  he  did  not  remain  a  year,)  went  from  Rome 
to  Messina.  Contemporary  authors  having  observed 
a  profound  silence  as  to  a  fact  so  important,  reason, 
and  sound  criticism,  enjoin  us  to  give  no  credit  to 
a  writer  who  attests  facts  so  remote  from  his  own 
time. 

28.  The  author,  in  his  preface,  says  further,  that 
these  laws  were  received  at  Paris,*  in  the  year  1250, 
by  John  de  Belmont,  and  that  he  swore  by  the  soul 
of  the  king  of  France,  in  the  presence  of  the  knights 
de  VOst^  Templars y  and  Hospitallers,  and  the  admiral 
of  the  Levant^  that  the  same  should  be  perpetually 
observed.  It  is  impossible  to  make  this  account 
agree  with  history.  Louis,  king  of  France,  was, 
during  that  year,  in  the  Levant,  where  he  was  de- 
feated. In  a  battle  which  he  hazarded  against  the 
mfidels,  he  and  his  army  were  made  prisoners  of 


^  "  Parisi.  L'anno  1250,  fur  concessi  per  Giovanni  di  Bel- 
monte  sopra  I'anima  del  Re  di  Francia  che  in  quel  tempo  non  era 
ben  sano  in  presentia  de  i  Cavalieri  dell'  Ost,  e  di  i  Templieri,  e 
de  i  Spedalcri,  e  deli'  Armiraglio  di  Levante,  per  osservarli  sem- 
nrc."— Ib:d....T. 


Chap.  TV.  OF  EUROPE.  S4t 

Consolato  not  adopted  in  France  in  1250- 

war.  If  so  great  an  act  of  jurisdiction  was  exercised 
in  France  by  John  de  Belmont,  with  what  authority 
was  he  clothed  ?  No  person  knows ;  the  author  him- 
self has  not  told  us.  Why  was  it  not  rather  done 
by  queen  Blanche,  whom  the  king  left  regent  of  his 
kingdom  ?  Another  reflection  naturally  occurs,  as 
to  the  knights  de  COst,  in  whose  presence  the  au- 
thor asserts  these  laws  to  have  been  accepted.  L'Ost 
is  an  old  French  word,  signifying  army.  But  besides 
that,  this  denomination  of  the  knights  o^  the  army.,  is 
not  used  by  any  French  author,  ecclesiastical  or  secu- 
lar, to  distinguish  any  of  those  nobles  or  ecclesiastics 
to  whom  the  title  o{ chevalier  is  given,  we  are  at  a  loss 
to  imagine,  why  these  military  characters  who,  in 
general,  were  perfectly  ignorant  ol  all  matters  of  law, 
which  they  abandoned  to  derksy  should  have  been 
introduced,  to  assist  in  the  promulgation  of  a  Code  of 
maritime  laws.  On  the  same  ground  stands  the  sup- 
posed presence  of  an  admiral  of  the  Levant ;  since, 
according  to  the  observations  of  Fournier  and  Valin, 
no  such  character  as  admiral  was  known  in  France, 
before  the  year  1327,  under  the  reign  of  Charles  IV, 
surnamed  le  beau,  who,  for  the  first  time,  conferred 
this  office  on  Peter  Megue,  or  Micge.(30y) 


(309)  P. Fournier,  Ilydrographic,  liv.  7,ch.  I.— Valin,  Comment. 
r1 1'Ordin.  de  France,  torn.  I,  p.  82,  "  Mais  que  ce  I'ierre  le  Megue, 
ou  Miege,  ait  ete  eflectivement  amiral  dc  France  en  titre,  c'est  ce 
que  prouvent  non  seulement  les  listes  des  amiraux  donn^espar  Du- 
cange,  P.  Daniel,  Le  Ferron,  P.  Fournier,  et  le  P.  Anselnie,  niais 
encore  cellc  que  Ton  trouve  dans  un  ancien  manuscript  de  M.  Du« 
puy,  qui  etoit  a  la  bibliotheque  de  S.  A.  S.M.  Icduc  dc  Penthievre, 
n.  84§." 


34*  THE  MARITIME  LAW        Parti, 

-  .-J 

Fuither  proofs  of  the  falsity  of  the  Preface  to  the  Consolato. 

29.  The  Consolato,  appears  to  have  been  again 
accepted,  in  the  year  1262,  at  Constantinople,  in 
presence  of  the  emperor  Paleologus.*  It  was  ap- 
proved, for  the  first  time,  by  the  Latins,  if  we  may 
credit  the  author  of  the  preface,  after  they  had  ex- 
pelled the  Greeks  from  that  city.  The  latter,  after 
their  restoration,  accepted  it  anew.  There  is  no 
doubt  that  Michael  Paleologus,  reigned  that  year  in 
Constantinople,  which  he  re-took  in  1 260 ;  but  no 
author,  in  relating  the  events  of  the  times,  has  made 
any  mention  of  the  facts  attested  in  this  preface. 

30.  The  imposture  of  this  piece  will  further  ap- 
pear from  the  assertion  that  the  Consolato  was  ac- 
cepted in  Syria,  in  1270,t  by  Frederick,  king  of 
Cyprus,  since  history  informs  us,  that  Hugo  III  was 
at  that  time  king  of  that  island;  that,  in  1269,  he 
was  crowned  king  of  Jerusalem  ;  and  that,  during 
that  period,  there  was  no  king  of  Cyprus,  named 
Frederick. 

31.  The  Consolato  is  a  third  time  presented  for 
acceptance  at  Constantinople,  in  1270.    The  author 


*  "  ConstantinopoH.  L'anno  1262,  fur  concessi  in  Constantino- 
poli  in  S.  Angelo  per  Paleologo  Imperatore,  e  giuro  osservali  sem- 
pre." — Preface  to  the  Consolato.... T. 

•f  "  Soria.  e  ConstantinopoH.  L'anno  1270,  fur  concessi  in  Sorlc^ 
per  Frederico  Re  di  Cipro,  e  in  Constantinopoli,  per  Timperatpre. 
Constantino,  e  giuromo  osserrali  sempre." — Ibid....T. 


Chap.  IV.  OF  EUROPE.  349 


The  dates  given  in  this  Preface  erroneous. 


pretends,  that  it  was  made  by  the  emperor  Constan- 
tine,  though  it  had  been  already  accepted  by  Pa- 
leologus  in  1262.  This  would  not,  in  fact,  be  sur- 
prising, if  Constantine  had  been  emperor  at  that 
time ;  but  it  is  undoubtedly  true,  that  Michael  Pale- 
ologus  reigned  there  until  1283,  when  he  was  suc- 
ceeded by  his  son  Andronicus  II.  Though  Androni- 
cus  was  crowned  with  his  two  brothers,  Michael  and 
Constantine,  and  it  may  thence  be  inferred,  that  this 
is  the  Constantine  mentioned  in  the  preface  ;  yet  the 
fact  is  opposed  to  history,  for  it  is  utterly  improbable 
that  he  could  have  given  a  sanction  to  the  Consolato 
without  the  intervention  of  his  two  brothers. 

32.  It  is  useless  to  carry  any  further,  the  refutation 
of  the  dates,  at  which  the  author  of  the  preface  de- 
clares the  Consolato  to  have  been  received  at  Genoa, 
Alarseilles,  Brondi,  Rhodes,  and  Majorca.  From  all 
that  has  been  observed  on  the  great  want  of  chrono- 
logical accuracy  in  this  author,  and  for  the  strong  rea- 
sons urged  for  doubting  his  assertions,  there  is  ground 
to  believe,  that  all  the  dates  in  this  preface  are  the 
work  of  the  writer's  imagination,  and  that  the  com- 
piler or  editor  of  these  laws  supposed  that  their  value 
might  be  enhanced,  by  being  decorated  with  these 
illustrious  testimonies  in  their  favour.  The  true  ori- 
gin of  the  Consolato  del  Mare  remains,  then,  enve- 
loped in  perfect  obscurity,  and  the  nation  who  first 
published  it  is  yet  unknown. 


tJ50  THE  MARITIME  LAW        Par/  /. 

Eirst  editions  of  the  Gonsolato— It  was  the  work  of  the  Pisans. 

33.  The  first  Italian  editions  declare  it  to  be  a 
translation  from  the  Spanish.*  Stephen  Cleirac,  in 
in  his  book,  entitled,  Guidon  de  la  mer,  supposes  it  to 
have  been  composed  in  the  Catalonian  language. 
Yet  Vinnius,  in  his  notes  on  PeckiuSy  Ducange  in  his 
glossary,  under  the  word  consules,  and  Heineccius, 
always  quote  it  in  the  Italian  language. 

34.  Amidst  so  much  uncertainty,  and  diversi- 
ty of  opinion,  on  a  point  so  very  interesting  to  the 
history  of  naval  jurisprudence,  and  the  origin  of  mo- 
dern maritime  law,  I  am  obliged  to  have  recourse  to 
the  chronicles  and  annals  of  the  middle  ages,  to  as- 
certain the  truth,  and  to  fix  my  own  opinion.  After 
the  maturest  reflection,  and  the  most  accurate  re- 
searches, it  appears  to  me,  that  the  Consolato  del 
Mare,  can  be  the  production  of  no  other  than  the 
pisans. 

35.  The  frequent  voyages  of  the  Pisans,  and  the 
victories  they  gained,  on  various  occasions,  which 


*i  Habner  says  a  translation  was  made  of  the  Consolato  from  the 
Catalonian  language  into  the  Castilian,  by  Francisco  Biaz  Romano, 
in  1339,  in  4to,  and  he  gives  the  title  at  full  length.  He  does  not 
say,  however,  that  he  had  seen  this  Spanish  edition;  and  Azuni 
makes  no  mention  of  it.  Hubner  also  mentions  an  Italian  transla- 
tion, made  by  John  Baptist  Pedrezzano,  and  printed  at  Venice,  in 
1576,  in  230  quarto  pages.  This  same  translation^  he  says,  was  re- 
printed at  Venice,  in  1584-,  with  the  same  number  of  pages,  to 
which  a  supplement  was  subjoined  of  a  maritime  itinerary,  Parto- 
lano  del  Mare,  by  one  Paul  Gerardo,  which  fills  thirty-eight  pages 
more....T. 


Chap.  IV.  OF  EUROPE.  351 


Authority  of  Gaetan  shews  tlie  Consolsito  to  be  a  Pisan  work. 


rendered  them  masters  of  the  sea,(3 10)  necessarily 
placed  them  in  circumstances,  that  give  rise  to  the 
frequent  discussion  of  questions  of  maritime  jurispru- 
dence, and  led  them  to  form  a  body  of  laws,  compris- 
ing all  the  decisions  which  might  be  useful,  as  had 
been  formerly  done  by  the  Rhodians. — How  can  we 
refuse  to  a  people,  who  owed  all  their  grandeur  and 
wealth  to  commerce  and  navigation,  those  laws  and 
regulations,  which  are  the  only  means  of  encourag- 
ing the  one,  and  increasing  the  other  ? 

36.  It  is  admitted,  that  this  induction  is  too  ge- 
neral, and  that  the  same  reasoning  might  be  equally 
applied  to  every  other  maritime  state,  contemporary 
with  Pisa.  It  becomes  necessary,  therefore,  to  sup- 
port my  opinion,  by  such  authentic  proofs,  as  will 
shew  it  be  well  founded.  I  shall  begin  with  the  tes- 
timony and  authority  of  Constantine  Gaetan,  a  Bene- 
dictine Abbe,  in  his  notes  on  the  life  of  Gelasius  //, 
page  402,  of  the  second  part  of  the  3d  volume  of  Mu- 
ratori's  Rer.  Italic,  in  which  he  points  out  the  exact 
date  of  the  origin  of  the  Consolato  del  Mare. 

37.  This  author,  after  having  lavished  his  praises 
on  the  republic  of  Pisa,  endeavours  to  support  his 
opinion  by  the  testimony  of  John  Charles  Florentin, 
and  cites  the  very  words  of  that  author,  who  speaks 
in  high  terms  of  the  wisdom  of  the  Pisans,  and  boasts 
of  their  maritime  wars,  and  victories,  by  which  they 


(310)  See  Chapter  IT,  section,  Pisa. 


352  THE  MARITIME  LAW        PaH  L 

—,-  " 

The  Pisans  obtain  the  sanction  of  the  pope  to  the  Consolato. 

gained  the  name  of  masters  of  the  sea,  as  well  as 
the  applause  of  all  nations.  These  praises  were 
bestowed,  he  observes,  among  other  reasons,  because 
the  Pisans  were  the  first  to  engage  in  devising  regu* 
]ations  for  navigation,  and  maritime  commerce,and  in 
framing  such  laws,  as  were  requisite  to  maintain 
good  faith,  and  to  serve  as  rules  in  all  maritime  con- 
tracts.(31 1)  He  affirms,  that  he  is  supported  in  his 
opinion,  by  that  of  Claude-Nicolas  Frabricius  Peyre- 
scius,  a  Frenchman,  and  a  man  of  letters,  who  lived 
in  his  time  ;  and  he  relates  it  as  an  incontestible  fact, 
that  the  Pisans  compiled  the  body  of  maritime  laws, 
called  the  Consolato  ;  that  though  it  had  been  already 
recognised  by  the  republic,  yet  the  Pisans,  much  at- 
tached to  religion  and  to  justice,  believed  it  their  du- 
ty, on  a  subject  of  so  great  importance,  to  have  the 
approbation  of  the  Holy  See. (3 12)  They  proceeded 
to  Rome  for  that  purpose,  and  intreated,  with  great 
humility,  Gregory  VII,  to  give,  by  his  sanction,  the 
force  of  law  to  those  statutes.  The  holy  father, 
condescending  to  comply  with  their  wishes,  confirm- 


(311)  Soli  Pisani,  says  Gaetan  in  liis  notes  on  Miiratori,  pro?no- 
tores  exiiterunt,  ul  mare  quod  antea  nullis  legibus  navigabatia-^  certis 
in  postcncm  ejus  navigatio  coerccretur. 

(312)  Id  quod  eliani  opiime  animadvcrtit  suis  ad  me  datis  Uteris, 
•oir  sane  erudUissimus ,  clarissimusque,  Claudius  Nicolaus  fabricins 
Feyrescius  Gallus,  de  Uteris,  deque  lilcratis  bene  nieritissivius .  Et 
quando  sine  apostolica  Petri  facuUate  nihil  unquaiu  boni  fieri  potest, 
Pisani  (potentissimcc  etiamsi  eorwn  Republic(r,  voluntas  adesstt)  ni^ 
liilo  minus  ut  religiosi,  summum  Reipubliae  Christiance  Antistitein  ea 
de  re  in  primus  consukndum  dccrcxcre.    Muratori,  in  loc.  cit. 


Clinp,  IV.  OF  EUROPE.  353 


Bcttinclli  aiid  Fanucci  speak  of  tlie  Consolato,  as  a  Pisan  work. 


ed  these  statutes,  in  the  church  of  St,  John  de  Late- 
ran,  on  the  1st  of  March,  1075,  and  the  Romans,  at 
the  same  time,  took  an  oath  for  their  perpetual  ob- 
servancc.(313) 

38.  The  abbe  Bettinelli,  in  quoting  the  authority 
of  Gaetan,  in  his  work,  entitled,  //  Risorpimento 
iT Italia,  asserts  the  same  thing.  *'  She  (Pisa)  trans- 
"  mitted  to  Pope  Gregory  VII,  in  1075,  for  his  sane- 
"  tion,  the  naval  laws  she  had  collected,  that  they 
"  might  become,  by  such  approbation,  a  maritime 
«  Code  for  all  Italy. "(3 14) 

39.  The  learned  M.  Fanucci,  in  an  acadejiikal 
discourse  on  the  history  of  Pisa,  printed  in  1788,  con- 
firms my  opinion.  He  says,  in  one  of  his  notes,  page 
70,  that  it  is  beyond  all  doubt,  that  this  work  (11 
Consolato)  contains  many  of  the  naval  laws  of  the  re- 


(313)  Adeunt  ilaque  Romam,  Gregorium  VII.  papam  conveniunt, 
aguntcfue  cum  illn,  nt  a  sanctitate  sua  vim  reciperent  ece  maris  leges, 
ordinationesque.  Annuit  sanctissimus  pontifex,  easdemque  confirtna- 
rit  in  Basilica  Sancti  Joannis  iMieraiiensis,  Kal.  Mart,  anno  Chrisio 
1075,  conjirmatasque  max  Romani  jurajnento  ohservare  perpetiio  se 
obstrinxerunt.  Vita  Gelasii  II.  ex  MS.  bibliotli.  Anibrosianas  Pan- 
dulphi  Pisani  cum  Comment.  Constant.  Cajet,  apud  Muratori, 
tom.  3,  Rerum  Italic,  pag.  367. 

(3M.)  Diede  ella,  Pisa,  in  mano  a  Gregorio  VII.  nel  1075,  per- 
che  le  approvassc,  le  leggi  nautiche  da  lei  compilate,  che  per  tale 
apprnvazione  divennero  un  Codice  marittimo  per  gli  Italian!.  Bet- 
tinelli, //  Risorg.  d'lial.  tom.  3,  p.  84. 

Vol.  I.  Yv 


354  THE  MARITIME  LAW        Part  t, 

- "    -  ... 

Breve  Maris  of  Pisa,  similar  to  the  Consolato. 

public  of  Pisa.  In  fact,  continues  this  author,  Val- 
sechi,  in  his  epistles,  de  veteribus  Pis.  civit.  const,  ob- 
serves, that  in  the  Consolato  del  Mare,  are  found  ex- 
actly the  same  regulations  relative  to  the  principal 
and  most  important  points  of  maritime  law,  as  are 
contained  in  the  Breve  maris,  or  Breve  consulum  ma- 
ris Fisce.  It  is  certain,  that  the  statutes  of  Pisa,  com- 
piled in  the  1 1th  century,  contain  many  laws  similar 
to  those  of  the  Consolato,  on  various  maritime  sub- 
jects, and  some,  of  periods  still  more  remote.  In  the 
public  records  of  Pisa,  (which,  by  the  indulgence  of 
the  civil  magistrate,  who  gave  me  the  permission 
with  that  frank  liberality  which  marks  his  conduct, 
(315)1  have  myself  verified)  may  be  found  at  this  day 


(315)  I  ought,  in  this  place,  to  express  my  gratitude  to  the  civil 
magistrate  of  Pisa,  for  the  honour  he  has  done  me,  by  causing  my 
name  to  be  inscribed  among  the  nobles  of  that  city,  in  consequence 
of  the  publication  of  tlie  former  edition  of  this  work,  in  which  this 
article  appeared. 

This  honourable  mark  of  their  favour  was  announced  to  me.  In 
the  following  letter : 

"  Ill^o-   e  Claris"^^-  Sig«-  Sig^'  Pad«-  CoF°- 

'*  L'OrEK  A  di  V.  S.  Illustrissima  e  Clarissima,  che  ha  per  titolo^ 
Sj/stevm  Universale  del  Principi  del  Diritto  Marittimo  dell'  Europa, 
o  stata  accettata,  e  sommamente  gradit^  dal  magistrato  civico  di 
questa  citta  a  cui  si  6  degnata  di  rimetterne  diversi  esemplari. 

"  La  profondila  della  giurisprudenza,  e  la  sublimita  dello  stile 
e  della  erudizione,  che  compariscono  nella  suddetta  opera  fanno 
abbastanza  connoscere  la  grandezza  de'  suoi  talenti,  e  rendono 
sempre  piu  celebre  nel  mondo  lettcrarioj  il  di  lei  nomej  e  percio 


Chap.  IV.  OF  EUROPE.  355 

Maritime  Collections  of  Pisa. 

three  collections  ;  the  first,  entitled,  Brcce  Curiccor- 
dinis  maris  ;  the  second,  Reformatio  ejusdem  Ciiricc, 
and  the  third,  Brevia  CiiricC  ordinis  maris.  Cur  ice  mer- 
catoriaUy  et  arlium  civitatis  Pisarwn.  These  collec- 
tions, though  posterior  to  the  municipal  statutes  above 
mentioned,  since  the  first  bears  date  in  1337,  are  evi- 
dently an  abridgment,  or  a  reformed  copy,  of  a  much 

qualunque  clogio  farsene  potesse,  non  sareble  mai  correspondents 
al  dei  gran  raerito. 

"  Tralasciato  pertanto  tutto  ci6  chia  riguarda  un  (ale  encomio, 
mi  faro  solo  un  dovcre  di  manifestarle,  oltre  i  piii  distinti  ringra- 
ziamenti  anche  i  sentimcnti  piu  sinceri  di  stima,  rispctto  e  gralitu- 
dine  del  Magistrate  predetlo  verso  rigguardevole  persona  di  V.  S. 
Illustrissima  et  Clarissima,  per  avcre  con  tanta  precisione  di  for- 
tissime  prove  dismostrato,  die  I'istituzione  del  Consolato  del  Mare 
ricevuto  dalle  nazioni  tutte,  come  nrmissima  base  per  il  commercio 
e  navigazione  marittima,  appartiene  all'  antica  Pisana  republica,  e 
die  a  questa  sola  devesi  la  taiito  sublime  prerogativa  di  essere  stala 
la  prima  a  stabilire  quel  numero  di  leggi,  che  tossero  bastevoli,  ed 
cfficaci  a  mantenere  la  buona  fede,  ed  a  regolare  le  contrattazioni 
della  suddetta  specie.  Ella  no  ha  ripportata  una  lodevole  vittoria 
contro  gli  avversari,  ed  ha  resfituto  alia  citta  di  Pisa  quella  gloria, 
che  finora  era  rimasta  sepolta  neli'  oscurita  delle  tenebre. 

"  Con  quanta  ragione  adunque  le  deve  essere  grato  il  popolo  Pi- 
sano  rappresentato  dal  Magistrato  suddeto,  ne  resta  abbastanza 
convinto  chiunque  legge  I'allegata  eriulitissima  sua  opera  sopra  Ic 
sanzioni  del  mare;  ecommechc  egli  nienlepiii  desidera,  chedimos- 
trarle  col  fatto  la  di  lui  riconocenza,  cosa  ha  gia  date  le  convenient  i 
disposizioni,  con  avere  deputatato  due  nobili  cavalicri  ad  umi'iar 
supplicaa  S.  A.  R.  per  ottenere  la  grazia,  che  V.  S.  illustrissima  e 
clarissima  venga  ammesso  al  godimento  dei  frimaro  onori  c  gradi 
dclla  citta  suddetta,  la  quale,  sempreche  ne  consequisca  Pintento, 
anderi  superba  di  avere  in  lui  acqnistato  un  conrilndino  per  (nr.l: 
meriti  illustrc  c  celebcrrimo. 


356  THE  MARITIME  LAW        Parti. 


Opinion  of  Campmany,  a  Spanish  author. 


more  ancient  Code  of  sea  laws.  It  does  not,  there- 
fore, contradict,  in  any  degree,  the  fact  before  ad- 
vanced, that,  anterior  to  the  compilation  of  maritime 
usages,  under  the  name  of  the  Consolato  del  Mare,  the 
Pisans  possessed  a  Code  of  maritime  laws,  on  the 
same  subject,  formed  at  a  period,  when  they  were 
the  first  maritime  power  in  the  Mediterranean  ;  and 
that  this  establishment  of  a  tribunal  for  the  decision 
of  maritime  causes,  among  the  Pisans,  was  long  an- 
terior to  that  of  any  institution  of  the  kind  among 
any  other  commercial  people, 

40.  M.  Campmany,  a  Spanish  author,  in  his  excels 
lent  work,  entitled,  Memorias  historicas  sohre  la  ma- 
rina commericoy  artes  de  la  antigua  Ciudad  de  Barce- 
lona, lib.  2,  cap.  1,  page  153,  asserts  the  claim  of  the 
Barcelonians  to  the  Consolato  del  Maret  against  the 
Valencians,  who  arrogated  it  to  themselves,  in  exclu- 
sion of  all  other  nations,  and  adduces,  with  success, 
various  proofs  and  documents  in  favour  of  this  part  of 


"  Tanto  debbo  farle  presente  in  ordinealla  commissione  ingiun- 
tami  con  deliberazione  della  prelodata  Magistratura  del  giorno  in- 
frascritto,  e  con  profondo  assequio  e  rispetto  ho  I'onore  di  protes- 
tarmi. 

"  Di  V.  S.  Illustrissima  e  Clarissima 

"  Umilis"™"-  ed  ObbF°-  Servitore, 
"  Pisa,  22  Febbrajo, 

1796.  "Leopoldo  Palloni,  Caneelf' 

"  Al  Signer  Senatore  Domenico  Alberto  Azuni,  Patrizio  Sassares^ 
a  Firenze." 


Chap,  IV.  OF  EUROPE.  357 

Opinion  of  Campmany. 

his  cause  ;  but  he  has  not  succeeded  in  depriving  the 
Pisans  of  the  glory  of  being  the  original  compilers, 
to  whom  he  does  not  hesitate  to  ascribe  the  merit  of 
being  the   first  authors  ot  ?naritivw  law.{3\6)     He, 


(316)  Campman}',  page  179.  "  En  ohsequio  de  la  xcrdud  dtbemo: 
accomodar  en  parte  neuxlro  dictamcn  al  penm7uiai(o  de  Cousluntiuo 
Ca^etano  en  sun  comentario  a  latida  dc  Gelaiio  II.  vuUir  al  de  Pisa." 
Translation  : — "  A  regard  to  truth  on  our  part  compels  us  to  agree 
in  opinion  with  Constantine  Gayetan,  in  liis  commentaries  on  the 
life  ot"  Gelasus  II.  a  native  ot  Pisa." 

Again,  page  180,  181,  "  HIuj/  bicn  pudicron  las  Pisuuos  ser  los 
primeros  que  instiiuyessen  algunas  ordtnuciones  relativas  a  su  puj/s^. 
y  ial  vez  las  primerccs  escritas  de  a  quella  epoca  (scculo  XI.)  ma  no 
nos  consta  si  non  las  tnismas,  que  hoj/  componen  el  cuerpo  legal  del 
Consuiado,  o  si  son  parte  dc  ellas  en  la  suhstancia,  y  ezpression.  Los 
Pisanos  pudieran  ser  los  primeros  que  escribieron  itn  codigo  niari- 
timo  sin  que  esie  sea  el  mismo,  que  hoy  se  conoce  con  el  titolo  de  Con- 
suiado del  Mar.  Lo  cierto  es,  que  quando  se  einprcndio  le  coinpila- 
cioii  por  los  prohombres  de  Barcelona  habrian  viududo  ya  las 
cosas,  attndldos  los  usos,  y  praciicas  que  se  habrian  adoptado  en  las 
Cmdades  del  Mediterraneo,  desdeque  los  Pisanos  pusieron  la  primera 
piedra  al  cdijicio  que  los  Barceloneses  provistos  de  mas  materiales  su,- 
pieron  conducir."  Translation  : — "  It  is  very  possible  that  tlie  Pi- 
sans were  the  first  who  instituted  any  marine  ordinances  for  their 
country,  and,  perhaps,  published  the  first  books  of  that  period,  (the 
nth  century;)  but  it  is  not  certain  whether  they  are  the  same 
wiiich  are  comprised  in  the  Code  of  the  Consolato,  or  osly  a  part 
of  them,  agreeing  in  substance  and  mode  of  expression.  The  Pi- 
sans may  have  been  the  first  who  composed  a  maritime  Code, 
without  its  being  the  same  known  at  this  day,  under  the  title,  // 
Consnlato  del  Mare.  The  truth  is,  that  when  the  magistrates  of 
Barcelona  undertook  the  compilation,  changes  had  already  taken 
place  in  many  things  depending  on  the  customs  and  usages  which 
had  been  adopted  in  the  cities  of  the  Mediterranean^  from  the  tinif 


858  THE  MARITIME  LAW        Part  I, 

The  present  Consolato  different  from  the  ancient  Code. 

therefore,  believes  it  possible,  that  the  Pisans  might 
have  been  the  first  who  composed  a  Code  of  mari- 
time laws,  without  its  being  the  same  as  the  Consola- 
to 3  but  that  the  Barcelonians  must  have  put  the  last 
hand  to  the  work,  and  finished  it  in  the  form  in  u  hich 
it  now  appears.  This  is  equivalent  to  saying,  that 
the  collection  we  have  at  the  present  day,  is  truly 
the  work  of  the  Barcelonians. 

41.  This  Spanish  author,  in  taking  all  the  chap- 
ters that  form  the  collection  of  the  present  Consolato 
for  the  same  ancient  Consolato,  that  was  adopted  in 
1075,  by  the  nations  above  mentioned,  falls  into  a 
great  error,  from  which  it  is  necessary  to  extricate 
him.  At  that  time,  this  collection,  without  doubt, 
contained  only  294  chapters,  which  I  have,  with 
good  reason,  attributed  to  the  Pisans.  The  four  ad- 
ditions, afterwards  made  to  them  by  Francis  CclelleSy 
who  was  the  compiler,  and  put  the  whole  work  into 
the  Catalonian  language,  and  which  were  printed 
together  with  the  former  chapters,  at  Barcelona,  in 
1502,  and  afterwards  in  1592,  were  not  adopted  by 
the  same  nations,  nor  v^ere  they  ever  in  force  among 
them,  nor  did  they  serve  as  a  rule  to  any  other  than  the 


the  Pisans  laid  the  first  slo.ne  of  that  edifice,  to  the  completion  of 
■which  the  Barcelonians  are  known  to  have  contributed  the  princi- 
pal materials. "  The  course  taken  by  Campmany  in  favour  of  the 
Barcelonians,  is,  in  fact,  the  most  skilful  method  to  maintain  his 
opinion ;  but  the  proofs  which  I  shall  adduce  to  the  contrary  in  the 
following  pages,  will  entirely  destroy  his  pretensions. 


Chap.  IV.  OF  EUROPE.  359 


The  contents  of  the  present  Code,  or  Consoluto  del  Mare. 


judgesofthe Consulate ormaritime  court  of  Barcelona, 
for  which  they  were  framed.  The  first  of  these  addi- 
tions consists  of  certain  privileges  granted  in  1 340,  by- 
Don  Peterlll,  of  Arragon ;  the  second,  which  is  with- 
out date,  contains  the  ordinances  of  the  counsellors, 
or  municipal  magistrates  of  Barcelona,  for  the  regula- 
tion of  the  Arragonese  Consuls  in  Sicily;  the  third,  in 
1484,  made  by  the  same  oflicers,  relates  to  certain 
maritime  cases,  and  to  marine  assurances  ;  the  fourth, 
consists  of  ordinances  taken  from  a  collection,  enti- 
tled, Recognovcrimt  proceres,  made  by  learned  and 
experiened  men,  in  1271,  1432,  and  1481.  These 
chapters,  added  to  the  ancient  collection,  form,  at  the 
present  day,  what  Is  comprised  under  the  title  of  // 
Consolato  del  Marc* 

42.  Even  the  introduction  to  this  book,  placed  at 
the  beginning  of  the  different  editions,  is  directly  op- 
posed to  the  conjectures  of  Campmany,  since  it  states 


*  The  volume  of  Casaregis,  before  referred  to,  contains,  first, 
the  294  chapters  of  the  Consolato,  next,  certain  ordinances  relative 
to  armed  ships,  and  various  naval  and  marine  otiices,  comprised  in 
36  chapters,  then  follow  the  four  additions  above  specified ;  be- 
sides which,  there  are  ordinances  relative  to  marine  assurance,  in 
27  chapters ;  laws  and  regulations  by  the  Co/iservatori  del  Mare  of 
the  republic  of  Genoa,  with  instructions  and  orders  for  the  conduct 
of  owners,  masters,  and  the  various  officers  and  persons  concerned 
in  navigation  ;  and  an  appendix,  containing  different  laws  extracted 
from  the  sixth  book  of  the  statutes  of  Venice,  relative  to  ships  and 
navigation,  and  the  Portolano  del  Mare,  for  the  Levant,  and  various 
other  place?  in  the  Mediterranean T. 


360  THE  MARITIME  LAAV        Part  L 


The  Consolato  not  a  Eaicelonian  work. 


as  a  fact,  that  the  Consolato  is  long  anterior  to  the 
establishment  of  consular  magistracy  at  Barcelona. 
A  questcs  son  los  bons  establimentSy  at  los  bones  cos- 
tumes que  son  defet  de  mar,  que  los  sabis  homes  que 
van  per  lo  mon  ne  conienzaren  a  donar  a  nostres  ante- 
ccssores,  los  qualsferen  pu  los  libres  de  la  sabietat  de 
tos  bones  costumes :  that  is,  "  these  good  establish- 
ments and  usages,  relative  to  maritime  affairs,  were 
given  by  wise  men,  w^ho  had  travelled  over  the 
w^orld,  to  our  ancestors,  who  composed  from  them 
these  books  of  prudent  conduct,  and  wise  customs." 

43.  It  cannot,  therefore,  be  doubted,  after  the 
proofs  that  have  been  adduced,  that  the  Barcelonians 
had  not  any  consular  magistrates  for  the  decision 
of  maritime  affairs,  before  the  fourteenth  century  -, 
since  it  is  certain,,  according  to  the  Spanish  diploma- 
tic collection.  No.  248,  and  275,  page  368,  that  this 
magistracy  was  not  instituted,  until  the  reign  of  Pe- 
ter III,  of  Arragon,  who  gave  to  the  body  of  mer- 
chants the  right  of  choosing,  by  a  plurality  of  votes, 
two  of  their  number  for  procurators,  or  judges  of  ma- 
ritime affairs,  saving,  always,  the  jurIsdiction(317) 


(.317)  The  same  Camp  many,  in  the  history  above  cited,  torn.  I, 
tit,  2,  p.  153,  assert.s  also  the  same  fact.  "  A  estos  dos  vionumenios 
de  la  primera  instiiucion  del  juzs,ado  mercaniil  slguen  otros  testimo- 
nios  no  menos  autenlicos  que  a  demas  de  conjirmar  su  existenzia  y  ex- 
ercicio  e  pyindpios  del  siglo  XIV.  nos  anuncian  a  sus  juezes  con  el 
titulo  ya  de  consiiks  dal  mar  en  numero  tamhicn  de  dos  puo  a  nnmi- 
nncion  de  los  mngistTodos  inunicipcdes  en  cvyns  ?nanos  jnrnhan  los  em- 


Chap.  IV.  OF  EUROPE.  361 

— -  '  '  ■  ■  '.■ ' 

The  situation  of  the  Barcelonians  in  the  lltli  century. 

of  the  ordinary  magistrates.  This  could  not  have 
been  other  v\ise,  since  the  Consolato  del  Mare^  was 
certainly  compiled,  and  universally  known,  from  the 
year  1075,  as  I  have  already  shewn,  and  as  appears 
from  its  title  page.  At  this  very  period,  the  Barce- 
lonians, assisted  by  the  Pisans,  had  scarcely  begun  to 
shake  off  the  yoke  of  the  Saracens.  They  were  shut 
out  from  the  sea  by  the  continual  piracies,  and  incur- 
sions of  the  Saracens,  who  were  masters  of  the  Bale- 
arean  islands.  AV^ho,  then,  can  believe,  that  in  such 
a  situation,  they  were  in  possession  of  the  science  of 
maritime  law,  and  naval  jurisprudence,  and  at  a  time, 
when,  beyond  doubt,  the  Catalonians  were  nothing 
more  than  simple  fishermen  } 


pkos  que  eran  annuales."  Translation  : — "  To  these  records  of  the 
first  institution  of  a  mari<ime  tribunal,  ma)  be  added  other  evidence 
not  less  authentic,  which  will  further  prove  its  existence,  and  the 
exercise  of  its  jurisdiction  in  the  ix'^inning  of  ihe  14th  centurx', 
mentioning  these  judges,  two  in  number,  under  the  titled  Consules 
dal  Mar,  but  annually  appointed  by  the  municipal  magistrates,  be* 
fore  whom  they  took  their  oaths  of  office." 

See,  aho,  the  form  of  the  oath  administered  to  these  consuls,  in  ihe 
municipal  archives  of  Barcelona,  in  a  book,  entitled,  Bolm  del  Con- 
cels,  ordinacions  y  lettres,  tor  the  year  1301,  folio  12,  48  and  62, 
art.  I.  Die  Veneris  Nonas  Januarii,  an.  Dom.  1502,  Conciliarii, 
rt  probi  homines  Civitatis  Barchinoncr,  elegerunt  in  consules  maris 
ejusdem  civitaiis,  P.  de  Oliiaria,  et  G.  Deusloti.de,  cites  Barchinona:, 
qui  juraxernnt  in  pnvsentia  conciliarorum  per  Deum,  et  ejus  sancia 
quotuQr  evaniielia  manibus  eorum  corporaiiter  (acta,  bene  et  legaliter 
se  habere  in  ipso  consulatu,  nan  inspecto  honore,  nmore,  vel  liniore 
alicujus. 

Vol.  I.  Zy 


362  THE  MARITIME  LAAV         Pari  I. 

The  Pisans  communicated  the  Consolato  to  the  Barcelonians. 

44.  It  is  equally  certain,  that  the  Barcelonians,  did 
not  frequent  the  ports  of  the  Levant,  until  the  thir- 
teenth century,  when  they  applied  to  commerce, 
.and  began  to  acquire  some  knowledge  of  mari- 
time affairs.  In  the  75th  and  76th  chapters  of  the 
Consolato  del  Mare,  is  a  question  of  freight,  whe- 
ther a  merchant  who  embarks  on  board  of  a  ship, 
ought  to  pay  for  his  bed,  furniture,  and  servants,  in 
voyages,  to,  and  from  Acre,  Alexandria,  Armenia, 
Barbary,  and  Spain. (318)  The  Pisans,  in  the  11th 
century,  visited,  and  were  received  in  preference  to 
other  nations,  and  with  many  privileges,  in  those 
counties,  where  the  Consolato  del  Mare  was  already 
in  use.  It  is  probable,  that  from  them  proceeded  the 
Code  which  they  communicated  to  the  Barcelonians, 
after  the  capture  of  Majorca,  in  1115,  when  they 
left  them  the  laws,  already  observed  by  commerci- 
al nations,  for  the  regulation  of  their  infant  naviga- 
tion.(319) 


(318)  Consolato  dtl  Mare,  ch.  75. — Patron  di  nave  e  tenuto  a 
mercante  di  portare  la  cassa,  e  Ictto,  e  suo  servitore,  et  compagno 
sufficiente  nel  viaggio,  dove  andar  debbe,  e  debbali  dar  loco  dove 
dorraa,  e  se  gli  mercanti  duranno  tanto  poco  nolo,  cioe  a  sapere  se 
andera  in  Acri,  in  Alessandria,  in  Armenia,  in  Barbaria,  o  in  Spagna, 
o  nelle  bande  di  quelle  parti,  o  ne  verra,  se  dara  li  dieci  ducali 
d'oro  larglii  in  giu  di  nolo,  non  gli  debba  essere  tenuto  il  patron  di 
nave  portare  cassa,  ne  servitore,  ne  compagni  senzanolo,  ne  debba 
havere  loco  di  mercanti."  lb.  ch.  76. — *'  Se  nave,  o  altro  legno 
va  in  Barbaria,  o  in  Spagna,  o  che  vcnghi,  il  mercante  non  da  ven- 
ti  pesanti  di  nolo  per  la  medesima  ragione  di  sopra." 

(319)  Accesserunt  PisancB  Afcjoricit  priimnn  anno  1113,  deiride 
Pisis  1118,  cos  insas  edam  inaris  leges  juramenlo  corroborantes,mox 


Chap.  IV.  OF  EUROPE.  363 

- —  '  '  ^  "^ 

The  Breve  Maris  of  Pisa. 

45.  After  having  thus  dismissed  the  claim  of  the 
Barceloniansto  the  original  collection  of  the  Consola- 
to  del  Marc,  attributed  by  Campmany  to  his  country- 
men, it  becomes  necessary  to  shew  on  what  founda- 
tion, besides  the  arguments  already  adduced,  I  have 
pretended  to  ascribe  this  honour  solely  to  the  repub- 
lic of  Pisa,  by  representing  them  as  the  first  nation 
who  made  this  collection,  and  who,  by  their  own  ob- 
servance of  it,  set  an  example  for  its  adoption  by 
other  maritime  states. 

46.  The  Breve  maris,  published  at  Pisa,  in  1323^ 
in  the  Italian  language  of  that  age,  now  existing 
in  the  archives  of  the  priors  of  Pisa,  at  present,  the 
records  of  the  corporation,  which  I  have  carefully 
inspected,  has  the  following  title  :  "  Queslo  ^  lo 
Brieve  deir  ordine  del  mare  della  citta  di  Pisa,  et  del 
siio  contado,  et  della  Corte  del  dicto  ordine  per  li  socio 
scripli  homini  savi,  el  discretti  deldiclo  ordine,  et  in 
qiiello  ordine  jiirati,  ciol  ser  Mattco  Gatto,  etc.  ettutto 
lo  dicto  breve  approvato  et  rattificato  fu  per  lo  consig- 
lio  del  popolo  di  Pisa  percio  facto  in  della  ecclesia  di 
Sancto  Sixto  in  del  mille  trecento  vinti  tre,  sextodecimo 
kalendas  Maii  indictione  quinta^  etc."{2,20)      This 


sccuti  reges,  ct  principes  alii,  rcspuhlica  insuper,  et  populi  turn  occi- 
dentales,  id  ipsum  pra:stiternnt.     Constan.  Gayet.  apud  Muratori 
Rer.  Ital.  lom.  .'J,  p.  367. 

(320)  Translation: — "This  hook  is  the  Brief  of  the  maritime  or- 
der of  Pisa  and  its  count,  and  of  the  court  of  the  said  order ;  and  the 
learned  and  discreet  persons  sworn  of  this  order,  are  Sr.  Mattcu 


364  THE  MARITIME  LAW         Part  L 

— ' L13 

Breve  Maris  compared  with  the  Consolato. 

Brief  contains  192  chapters,  to  which,  in  the  pro- 
gress ot  time,  some  others  have  been  successively  ad- 
ed,  with  the  following  title  :  "  Qiiesfi  sono  capitoli 
del  constituto  deWuso  della  citta  diPisa,  liquali  parten- 
gone  alia  corte  del  mare'\'h1\)  These  chapters  are 
the  same  with  those  of  the  statutes  and  usages  of  Pi- 
sa, collected  in  1161.  They  exist,  at  present,  in  the 
Latin  language,^322)  under  the  following  titles  : 
De  naulo  navium,  De  jactu  jiavium^  De  rebus  qiicz 


Gatto,  &c  ;  and  the  whole  of  the  said  Brief  has  been  approved  and 
ratified  by  the  council  of  the  people  of  Pisa,  in  the  church  of  St. 
Sixtu.s  in  the  year  1323,  on  the  16th  May,  in  the  5th  Indiction, 
&c." 

(321)  Translation: — "  These  chapters  form  a  part  of  the  sta- 
tutes and  usages  of  the  city  of  Pisa,  and  relate  to  the  maritime 
court."^ 

(322)  This  proves  tlie  reverse  of  what  has  been  advanced  by 
Casaregis,  Targa,  the  cardinal  de  Lucca,  de  Hevia,  Raudensis, 
Mornac  and  Sandi,  who,  copying  the  one  from  the  other,  have 
asserted,  that  the  CoJisolaio  del  Mare,  was  the  production  of  the 
Catalonians,  because  the  printed  copies  they  had  seen  were  in  that 
language.  It  is  well  known,  that  all  the  laws  promulgated  in  those 
times  were  written  in  Latin,  as  may  be  seen  in  the  laws  of  the  Lom- 
bards, the  municipal  statutes,  and  the  Brevt  maris  of  Pisa.  It  is 
on  this  ground  that  Gaetan,  who  lived  at  a  period  less  remote  from 
those  times,  cites,  before  all  others,  those  written  in  Latin,  after- 
wards the  copies  which  they  had  occasion  to  make  from  them,  vide 
supra,  loc.  cit.  Extant  ipsce  maris  ordinationes  lingua  Latino,  Italica 
FroTtnzali,  sive  Gallica,  Narhonensi,  et  Catalana,  tinn  manu  exaratis, 
turn  impressis  codicibus  erulgniw.  Quibus  multo  fusius  ostenditur, 
quod  nos  brevius  asseruimus.  Apud  Muratori,  Her.  Ital.  torn.  3, 
p.  367. 


Chap.  /T.  OF  EUROPE.  365 

Remarks  of  Casaregis. 

inveniuntur  in  naviy  De  damno  navi  dato  ab  altera 
navi ;  and  were  ordered  to  be  translated  from  the 
Latin,  into  the  vulgar  tongue,  and  to  be  inserted  in 
the  abovementioned  Brief,  as  appears  by  the  84th 
chapter;  '*  Ancojuro  die  infra  due  mesi  dalla  intrata 
del  mio  tifficio  fa?'o  li  capitoli  del  constitiito  tutti  li 
quali  parlano  del  facto  del  ware,  ridncerCy  et  scrivere,  et 
porre  volgarmente  in  del  presente  Breve^  sicchc  diibita- 
zione per  inantinon  72^/j"ca."(323) 

47.  These  chapters,  as  to  the  matters  of  which 
they  treat,  are,  in  all  respects,  conformable  to  those 
comprised  in  the  Consolalo  del  Marc.  There  are, 
at  the  present  day,  a  large  number  of  them  j  but  ma- 
ny have  certainly  been  added  in  the  later  editions. 
In  the  collection  published  by  Casaregis,  it  may  be 
seen  from  his  declaration,  that  the  first  44  chapters 
were  taken  from  the  Consolato  of  Valencia ;  and, 
according  to  his  assertion, (324)  are  wanting  in  the 
collection  printed  at  Venice,  in  1539.  In  the  second 

(323)  Translation: — "I  further  swear,  that  within  two  months 
after  entering  upon  office,  I  will  cause  to  be  digested,  transcribed^ 
and  put  into  the  vulgar  tongue,  and  inserted  in  this  present  Briefj  all 
the  chapters  of  the  statutes  which  treat  of  maritime  affairs,  in  order 
Uiat,  in  future,  no  doubts  may  arise  thereon." 

(324)  Casaregi,  Spiegazione,  al  cap  ^i,  di  Consolat.  del  Mar. 
"  Sin  qui  li  capitoli  del  Consolato  appartengono,  come  si  l-  veduto,  per 
lo  pill  al  modo  Giudiciaro  pralicato  dalla  Corte,  e  Consoli  di  Valenza, 
ma  da  questo  capitolo  in  appresso,  si  cominceranno  a  vedere  le  huone 
Icggi,  che  sono  state  stahilite  da  uomini  pratici,  eprudenti  intorno,  al 
iuoii  regolamcnto  delta  naviguzione,  «^c." 


366  THE  MARITIME  LAW        Parti. 


Chapters  added  In  the  edition  of  the  Consolato  by  Casaregis. 


edition,  which  was  afterwards  published  at  the  same 
place,  twenty  chapters  have  been  added,  with  the  ti- 
tle, Ordinazioni  sopra  le  sicurta  maritime,  and  are 
comprised  in  the  edition,  by  Casaregis,*  as  he  says, 
in  his  preface,  *'  gli  altri  die  ai  suddetti  vanno  coii- 
gitrntifUonsono  die  disposizioniparticolari  diBarcellona 
fatte  nei  tempi  appresso,  le  quali  sendo  stampate  tiitte 
in  un  libra,  han  data  occasione  a  molti  di  crederle  per 
una  continuazione  del  Consolato  del  Mare.y 

48.  The  chapters  of  the  Consolato,  possessed  at  the 
present  day,  contain  alterations  from  the  former,  which 
change   of  time,   and  the  existing  circumstances  of 


Translation  : — Exposition  of  Casaregis  of  the  44'i/i  chapter ; — 
*'  Hitherto,  as  we  have  seen,  the  chapters  of  the  Consolato,  have, 
for  the  most  part,  treated  of  the  forms  of  judicial  proceedings  prac- 
tised in  the  Court,  and  Consulate  of  Valencia;  but  after  this  chapter, 
we  begin  to  perceive  those  excellent  laws  which  have  been  esta- 
blished by  experienced  and  well-informed  men,  in  all  the  useful  or- 
dinances of  navigation."  He  speaks  still  more  positively  on  this 
point  in  his  4th  Discourse,  no.  15,  de  Commercio,  and  in  the  follow- 
ing terms  :  Quia  dicius  Consulatus,  uti  leges  particidares  civitatis 
Barcinonensis,  non  sunt  attendendce  in  aliis  mundi  emporiis,  nisi  eas 
de  consuetudine  receptas  fuisse  probatufn  fierit,  fyc." 

''■'  \n  the  edition  of  Casaregis,  that  I  have  examined,  there  are 
twenty-seven  chapters  comprised  under  this  title.. ..T. 

-{•  Translation: — "  The  other  chapters  which  have  been  added 
to  the  former,  are  only  particular  ordinances  of  Barcelona,  made 
from  time  to  time,  which  being  all  printed  in  one  book,  many  have 
been  led  to  consider  them  as  a  continuation  of  the  Consolato  del 
Mare:\..,T. 


Cliap.  ]V.  OF  EUROPE.  567 

"  —  ■  ■    •"      -=— 

Extracts  from  the  Consolato. 

maritime  commerce  rendered  necessary.  In  the  64th 
chapter,  we  find  the  following  observations  :  **  El 
per  le  ragioni  di  sopra  dette  fecino,  qucsta  menda  ti 
rwstri  antecessoriy  accioch)^  contrasto  non  possa  cssa^e 
intra  limercanti  e  li  biioni  iiomini y\?,'25)  and  again 
in  chapter  69,  ^'  Linostri  antecessori^i  quali  inprhna 
furono^  et  cominciorno  andare  per  il  mondo  volsei'o  chi- 

arire  questo  modo, e  per  le  ragioni  sopra  dette  fu- 

rono  qucsta  menda,  et  questo  chiarimcnto,  li  nostri  an- 
fecessori,  pereiocehc  contj^asfo,  7ih  Jatica,  w^  male  noii 
posso  esser  infra  li  patroni  delle  navi  o  naviliy  e  li  mer- 
cantiy  che  vanno per  il  mondo.''  Again  in  the  129th 
chapter  ;  "  E  per  la  ragione  di  sopra  detta,  gli  buoni 
nominiy  quali  prima  andor7W  per  il  mondo  lolscro  in 
questo  modo  chiarire;'"  and  again,  in  the  209th  chap- 
ter ;  "  E  per  le  ragioni  di  sopra  dette  gli  nostri  ante- 
cessori  hannofatta  qucsta  menda  per  gli  contrasti  ehc 
ci possono  intervenij-e.''    If  we  reflect  on  the  style  and 


(.']25)  Translation,  ch.  6\  : — "  And  for  the  reasons  above  statccf, 
our  predecessors  have  made  this  amendment,  in  order  (hat  Ihcre  may 
bene  more  dispute  between  merchants  and  good  men."  Ch.  6!) 
— "  Those  of  our  predecessors,  who  had  begun  to  travel  in  tlie 

world,  wished  to  ehicidate  it  in  this  manner," "  and  for  the 

reasons  before  mentioned,  our  predecessors  made  this  amendment, 
and  gave  this  explanation,  in  order  that  there  might  be  no  possible 
difficuhy,  or  dispute  between  masters  of  ships,  and  merchants,  who 
passed  from  one  country  to  another."  In  chap.  129,  it  is  also  said, 
"  And  for  the  reasons  above  given,  those  worthy  men  who  first 
travelled  through  the  world,  were  desirous  to  explain  it,  in  this 
manner."  Again,  in  cliap.  209, — "  And,  lor  the  reasons  above 
stated,  our  predecessors  have  made  this  alteration  in  order  to 
prevent  any  disputes  which  might  arise." 


368  THE  MARITIME  LAW        Part  L 

Laws  in  the  Digest,  Breve  Maris,  and  Consolato,  compared. 

language  of  ^hese  alterations,  and  corrections,  we 
shall  find,  that  they  resemble  the  protestations  be- 
forernentioned,  which  the  consuls  of  Pisa  were  ac- 
customed to  make,  in  taking  the  oath  prescribed  j 
and  we  shall  be  convinced,  that  the  Consolato  del 
Mare^  could  have  been  the  work  of  no  other  than 
the  Pisans,  at  the  time,  when  that  Code  was  promul- 
gated, and  became  generally  known. 

49.  In  support  of  what  has  been  advanced,  I  shall 
further  remark  the  uniformity  discernable  between 
the  regulations,  and  expressions  of  the  law,  already 
cited  from  the  Bj^eve  maris  of  Pisa,  and  the  third  law 
of  the  title  in  the  Pandects,  Ad  legem  Rhodiam  de  j ac- 
ta. In  the  chapter  of  the  Breve  maris,  beginning 
with  Cum  arbor,  we  find  the  following  decision  : 
*'  Cian  arbor  navis  incisa  fuerit  pro  mercibus  et  nam 
liberanda,  vel  aliud  instrumentum  navis,  removendi 
communis  periculi  causa,  dejectum  est,  per  libram 
damnum  ada'quetur.{S26)  The  3d  law,  cited  from 
the  title  in  the  Digest,  directs  the  same,  in  the  fol- 
lowing words  :  "  Cum  arbor  aut  aliud  navis  instru- 
mentum, removendi  coynmunis  periculi  causa,  dejectum 
est,  contributio  debetur.  This  remarkable  similitude 
between  the  decisions  of  the  two  laws,  being  once 
ascertained,  there  cannot  be  the  least  doubt,  that  the 
Pisans  have  extracted  from  the  Rhodian  laws,  con- 


(326)  The  regulations  in  the  94th,  ]98ti),and  1 9  Mh  chapters  of 
the  Consolato  dd  Mare,  are,  in  all  respects,  similar  to  those  contain- 
ed in  this  law. 


Chap.  IV.  OF  EUROPE.  369 


Time  when  the  Pandects,  &c.  were  first  found  in  Italy. 


tained  in  the  Pandects,   in   force  throughout   Italy, 
from  the  6th  century,(327)*  a  great  part  of  those  ma- 


(327)  Donat  Ast,  in  a  work  entitled,  deU*uw  e  deW  autorita  della 
ragione  civile,  lib.  2,  cap.  I ,  p.  8,  points  out  tiie  precise  time  of  the 
publication  of  the  body  of  civil  laws  in  Italy  :  "  Poriiamo  opinionc> 
ehe  il  Codice,  I' Instituzione  e  le  Pandetii  si  fossero  mandate  in  Italia 
iniorno  alt'anno  5.37,  che  fu  la  prima  volta  presa  Roma  dc  Bellisario, 
ed  il  lihrn  dcllc  novtlle  dopn  ruccisionc  di  Totila  ed  intiero  fus;aniento 
dei  Goti  dul'  Italia,  come  il  tulto  si  fa  conoscere  da  una  della  Consti- 
tuzione  dell'  istesso  Giusiiniano,  pubhlicata  I'anno  delSignore  563,  ct 
57  del  sua  impero.  Translation: — "  We  are  of  opinion,  that  the 
Code,  the  Institute;;,  and  Pandects  of  Justinian  were  sent  into  Italy 
about  the  year  537  ;  that  Rome  was  then  taken  by  Belisarius  for 
the  first  time,  and  that  the  book  of  Novels  was  known  there  after 
the  death  of  Totila,  and  the  entire  expulsion  of  the  Goths  from 
Italy,  as  may  be  seen  by  a  Constitution  of  Justinian  published  in 
the  563d  year  of  the  Christian  aera,  and  in  the  37  th  of  his  reign." 

As  to  the  celebraf'^d  literary  disputes,  which  arose  in  the  last 
century,  about  the  time  when  the  Pandects  were  discovered,  the 
best  opinion  is  that  of  the  Abbe  Borgo  del  Borgo,  a  nobleman  oi 
Pisa,  who,  in  a  very  learned  dissertation  printed  at  Lucca,  in  1764, 
entitled,  Dissertazione  sopra  I'Istoria  de  Codici  Pisani  delle  Pandeltv, 
Sfc.  proves  that  the  Pandects  were  known  a  long  time  before  they 
were  discovered  at  Amalphi  in  1135.  After  stating  the  reasons 
adopted  by  his  celebrated  adversaries,  Breneman,  Grandi,  Fanucci, 
and  Valsechi,  he  expresses  himself,  (p.  19,)  in  the  following  man- 
ner :  "  Onde  colla  predetta  mulliplicita  degli  esemplari,  che  ho  I'ar- 
dinienio  di  proporre  alia  considerazione  del  mio  cortese  kttorc,  se  mal 
nan  m'oppongo,  pare  a  me,  che  si  potesse  ancor  conciliare  la  t^ran  lite 
de,  mentovuti  due  celebratissimi  projcssori  Pisani,  stabilendo  per  Con- 
cordia, che  la  citta  di  Pisa  n'avesse  gi^  ilsuo  f/iolto  prima,  e  che  poi 
nell' anno  1135,  acquistas.se  ancor  quello  d'Amalfi.  Kel  qnal  sup- 
posto  perh  converra  credere  ancora,  che  dei  due  esemplari  pcnenuti 
in  Pisa,  sendosene  uno  '•o^n  snlvato  da  qucsto,  che  vi  resio,  jinica?nen(' 

Vol.  I.  3  A 


370  THE  MARITIME  LAW        Part  L 

'        ...        — — 

Opinion  of  M.  Del  Borgo. 

ritime  laws  which  they,  as  has  been  shewn,  adopted 
and  swore  to  observe,  in  the  1 1th  century. 


avessero  orisine  dipoi  tutti  quanti  i  lihri  dei  Digesti,  di  cuipresente- 
mente  abbiumo  notitia ;  siccome,  per  seco-ndo  argomento  della  sua  no- 
bile  fatica,  can  ottime  ragione  sostene  il  sig.  aw.  Guadagni,  nell'  ac- 
cennaio  suolibro." 

Translation  : — "  It  appears  then,  from  the  multiplicity  of  copies 
I  have  mentioned,  and  which  I  dare  offer  to  the  examination  of  the 
courteous  reader,  that  we  may,  if  I  am  not  deceived,  further  recon- 
cile the  important  controversy  of  the  celebrated  professors  of  Pisa, 
by  admitting,  first,  that  the  city  of  Pisa  had  its  copy  a  long  time 
before;  and  tliat,  afterwards,  in  the  year  1135,  il  obtained  that 
found  at  Amalphi,  This  being  established,  it  is  easy  to  believe 
that  of  the  two  copies  acquired  by  Pisa,  only  one  has  remained  ex- 
tant; and  that  it  is  from  the  only  remaining  copy,  that  all  the  books 
of  the  Digest  we  know,  have  been  taken,  as  Sign.  Aw.  Guadagni 
has  suggested,  and  maintains,  with  the  best  reasons,  in  the  second 
argument  of  his  excellent  work." 

The  opinion  of  M.  Del  Borgo,  appears  the  more  conformable  to 
the  truth,  from  the  expression  in  the  preamble  to  the  Pisan  consti- 
tution of  I  161.  Pisana,  itaque  civitas  a  mullis  retro  temporibus  vi' 
■tendo  lege  Romana,  retentis  quibusdam  de  lege  Longobarda  subjudi- 
cin  legis  propter  convti'sutionem  diversarum  gentium  per  diversas 
mundi  partes  suas  consuetndines  nisi  scriptas  habere  meruit ;  super 
quas  annuatim  judices possini ,  quos previsores  appellavit,  i^c.  Cod. 
dell'  Archi.  Communit.  di  Pisa,  n.  I. 

*  Belisarius  took  Rome  in  537  ;  it  was  retaken  by  Totila  in  546, 
and  the  Goths  were  finally  expelled  in  553,  when  Italy  was  again 
overrun  by  a  new  deluge  of  barbarians.  Gravina  is  of  opinion, 
that  the  laws  of  Justinian,  though  preserved  at  Ravenna,  were  not 
publicly  known  throughout  Italy,  but  were  buried  and  lost  under 
the  barbarous  jurisprudence  of  the  successive  conquerors  of  the 
country.     A  regionibits  vera  aeteris,  quas  statim  ab  expulsis  Cothis, 


Chap.  IV.  OF  EUROPE.  371 

Conjectures  of  Gravina  as  to  the  introduction  of  tlie  Pandects  into  Ital)'. 

50.  After  all  that  has  been  said,  I  may,  with  rea- 
son conclude,  that  Gaetan  has  spoken  the  truth,  when 
he  asserts,  that  the  Pisans  have  been  the  earliest  pro- 
moters of  maritime  laws,  since  they  were  the  first  who 
collected  them  into  a  Code,  which  they  promulgated 


Longobardorum  colluvies  occvpaverat,  Ronianum  jus  exulavit:  tan- 

devique  ah    ipsa  Ravenna  excessit Itaqiie  Italia   nuijestaic 

simul  et  lec;ibus  exuta  suis,  jugum  imperii,  legumque  subiit  barbaro- 
rum,  dominaque  rerutn  humanarum  sensu  pristine  libertatis,  reteris' 
que  magnitudinis  per  Inngum,  ac  vile  servitium  privata,  pro  Romano 
splendore,  atque  Uumanitate  juris,  beltuinas,  atque  Jerinas  immanes 

que  Longobardorum  leges  accipit In  Italia  zero,  (si  Raren- 

nam  excipias)  resistente  ab  initio  barbaric  Gnthoriim,  nnnqnam  floru- 
erunt ;  vixque  taudem  emerserunt,  anno  1530.  He  adds,  that  the 
copy  of  the  Pandects  found  in  the  time  of  Lothario,  !  1 35,  were 
given  by  that  prince  to  the  Pisans,  who  asked  it  as  a  reward  for 
the  assistance  given  him  by  their  fleet  against  Roger,  duke  of  Apu- 
lia, and  count  of  Sicily.  The  copy  was  transported,  after  the  cap- 
ture of  Pisa,  by  the  Florentines  in  1400,  to  their  capital.  From 
this  copy  all  the  other  Latin  editions  are  supposed  to  be  de- 
rived. Gravina  imagines  the  Novels  to  have  been  spread  over 
Italy  before  that  time,  and  he  mentions  Ivo  of  Chartres,  as  speaking 
of  the  civil  law  of  Justinian,  and  the  Pandects,  before  which  time,  if 
they  had  been  met  with,  they  were  soon  forgotten,  and  suffered  by 
sluggish  indift'crence,  to  sink  into  oblivion.  A  copy  of  the  Novels 
was  found  at  Ravenna,  and,  some  have  supposed,  another  of  the 
Pandects.  It  is  probable,  as  Gravina  conjectures,  that  many  books 
of  the  civil  law,  dispersed  over  Italy,  when  the  thirst  for  Roman 
jurisprudence  revived,  were  rather  recognised  than  discovered  ; 
agniti  potius  fuere,  quam  repcrti.  Gravina,  de  ortu  et  progrcssu 
juris  civilis,  §  139,  1+0,  141.  Gibbon's  History,  chap.  44.  See 
also  Giannone,  Istoria  di  Kapoli,  lib.  xi.  ch.  1 1,  who  mentions  the 
date  of  tlie  epistle  of  Ivo  concerning  the  Pandects,  to  have  been 
about  the  year  1099 T 


372  THE  MARITIME  LAW        J'art  J, 


The  Pisans  made  the  first  Code  of  maritime  laws. 

in  Italy,  from  whence  it  has  been  taken,  and  re- 
ceived by  all  maritime  states,  tor  the  regulation  of 
their  nautical  concerns,  and  has  passed  from  hand  to 
hand  among  all  nations,  as  the  interests  of  commerce 
made  them  teel  the  want  of  such  laws.  I  shall,  there- 
fore, consider  the  Pisansatthe  period  abovemention- 
ed,  the  first  legislators  of  maritime  commerce  in  the 
Mediterranean,  since  the  proofs  produced,  place  in  the 
clearest  light,  the  error  into  which  those  authors,  cited 
in  the  13th,  14th,  15th,  and  40th  paragraphs,  have  fal- 
len, in  regard  to  the  supposed  origin  of  the  Consolata 
del  Mare.  1  have  further  pointed  out  the  mistakes  of 
the  author  of  the  preface^  found  in  the  beginning  of 
almost  every  edition  of  that  Code,  and  have  shewn, 
that  it  deserves  no  regard,  and  is  wholely  destitute 
pf  authority. 


ARTICLE  IX, 

Of  the  Amaljitan  Lazvs. 

§  1 .  THE  city  of  Amalphi,  situated  on  the  con- 
fines of  the  ancient  Lucania,  in  the  very  place  for- 
merly inhabited  by  the  Picentines,  now  the  province 
of  Salerno,  in  the  kingdom  of  Naples,  was  bathed 
by  the  ocean  along  its  whole  shore,  and  which 
was  also  called  the  coast  of  Amalphi.  This  city 
was  originally  built  by  some  families  who  fled  from 
Rome,  to  escape  from  the  tyranny  which  reigned  in 
that  capital,  towards  the  close  of  the  ninth  century. 
In  sailing  towards  Constantinople,  where  these  co- 


Chap.  IV.  OF  EUROPE.  37: 


The  ancient  wealth  and  splendor  of  Amalplii. 


lonists  wished  to  settle,  they  were  shipwrecked  on 
this  coast.  The  lofty  promontory,  not  far  distant, 
which  appeared  an  emblem  of  the  liberty  and  secu- 
rity of  commerce,  offered  an  attractive,  and  commo- 
dious assylum. 


2.  Its  great  population,  wealth,  and  flourishing 
commerce,  celebrated  by  the  poet,  William  Pugli- 
esc,(328)  rendered  it  so  powerful  at  sea,  that  its  na- 
val forces,  as  appears  from  the  history  of  the  middle 
ages,  were  more  than  once  employed  to  assist  the 
sovereign  Pontiffs,  against  the  Saracens. (3 29)  They 
made  frequent  voyages  to  the  Levant;  and  it  was  to 
favor  the  commerce  of  the  Amalfitans  with  the  Turks, 
to  whom  they  carried  new   merchandise, (3 30)  that 


(328)  Urbs  hccc  dites  opum,  popidoqice  referta  tidetur. 
Nulla  7naQ:is  locuples  argcnto,  vestibiis,  auro, 
Portibus  iniiumeris  hac  plurimus  urbe  moratur, 
Nauta  maris,  Civltque  vias  apcrire  paratus. 
line  et  Alexandri  gens  hivc/reta  plurima  transit. 
Hie  Arabes,  Indi,  Siculi  noseunlur,  et  Afri. 
Hac  gens  tolum  prope  nobilitala  per  orbcvi, 

Et  viercandajcrcns,  et  amuns  inercata  refer  re. 

Gul.  Piigliese,  lib.  3, 1'ocm.  Histor. 

(329)  Muratori,  in  his  Annals  of  I  tali/,  ot  the  year  1077,  speak- 
ing of  the  surrender  of  Amalphi  to  Robert  de  Guiscard,  calls  it  the 
most  commercial  city  of  the  age,  abounding  with  inhabitants,  ships, 
and  gold,  "  Citta  allora  mereanlik  ul  sommo,  picna  d'oro,  piena  di 
popolo,  et  di  na-d." 

(330)  Inter  eos  auton  qui  loca  pradicta  tentaverunt,  fuerunt 
Tjri    de  Italia,  qui    ab   urbe,  quam  incohint,   dicuntur  Amalphi- 


374  THE  MARITIME  LAW       Part  I, 

The  Amalfitans  establish  commercial  houses  in  all  the  ports  of  the  East. 

they  received  great  indulgence  from  the  caHph  of 
Egypt,  who  gave  them  a  place  at  Jerusalem,  where 
they  were  permitted  to  retire,  and  reside  in  their  dif- 
ferent voyages.  This  gave  rise  to  the  order  of  St. 
John  of  Jerusalem,  so  celebrated  in  the  history  of 
ehristianity.(33l) 

3.  The  constant  navigation  of  the  Mediterranean, 
by  the  Amalfitans,  rendered  it  necessary  to  form  esta- 
blishments in  every  port,  for  the  reception  of  their 
merchandise.  They  possessed  many  of  these  places 
of  deposit  in  Sicily  ;  they  had  one  in  the  sub- 
urbs of  Palermo  ;  and  at  Messina,  and  other  cities  of 
the  island,  they  had  warehouses  for  their  goods, 
which  were  called  Amalfitan.  At  Constantinople, 
they  were  in  possession  of  the  church  of  St.  Andrew, 
with  a  certain  quarter  of  the  city,  in  which  they  en- 
joyed many  privileges,  and  immunities.  They  filled 
the  Levant  with  their  commerce,  and  none  but  the 
merchants  of  Amalphi,  were  to  be  seen  at  Antioch, 
Alexandria,  in  Syria,  in  Arabia,  in  India  and  Africa, 
where  they  were  the  first  to  carry  their  new  products, 
and  manufactures.  At  the  end  of  the  history  of  the 
Florentine  Pandects,  by  Henry  Brenkmann,*aDutch 


tani Hujus  regionis  habilatores,  ut  prcediximus,  primi  merces 

peregrinas,  quas  oriens  non  noterat,  ad  supradictus  partes  lucri  fa- 
ciendi  gratia  inferre  tentuverunt .  William,  Archbishop  of  Tyre, 
Histoire  de  la  Guerre  la  TerreSainfe,  liv.  18. 

(331)  Sigonius,  de  Regno  Ital.  lib.  9,  p.  387. 

*  This  history  was  published  at  Utrecht,  in  1722,  in  4to.     The 


Chap.  IV.  OF  EUROPE.  375 


The  court  of  admii-alty  at  Amalphi  was  in  high  repute. 


lawyer,  are  two  learned  dissertations,  in  which  he 
describes  the  grandeur  of  this  city,  and  its  famous  ar- 
senal, for  the  security  of  its  harbour,  and  coasts,  ves- 
tiges of  which  were  yet  to  be  seen  at  the  end  of  the 
16th  century. 

4.  From  these  facts,  it  is  natural  to  conclude,  that 
the  Amalfitans,  so  celebrated  for  navigation,  and  ma- 
ritime commerce,  so  rich  and  powerful,  and  so  well 
received,  and  highly  favored  by  all  nations  with  whom 
they  had  any  commercial  relations,  must  have  made 
laws  adapted  to  the  circumstances  in  which  they  were 
placed.  Their  long  experience,  the  dangers  they 
encountered,  and  the  frequent  controverted  cases 
which  arise  in  commerce,  must  have  obliged  them  to 
publish  some  regulations  on  the  subject.  We  know, 
from  history,  that  a  high  court  of  admiralty  was  esta- 
blished in  that  city,  to  which  all  the  nations  in  the 
Mediterranean  resorted.  Even  Constantinople  refer- 
red maritime  disputes  to  that  tribunal,  to  have  the  be- 
nefit of  its  equitable  decisions.  The  inhabitants  of  A- 
malphi,  in  a  short  time,  acquired  immense  riches,  and 
obtained  the  highest  respect  at  Constantinople,  on 
account  of  their  great  attention  to  commercial  afiairs, 
and  their  profound  knowledge  of  this  branch  of  juris- 
prudence. If  the  mariner's  compass,  as  some  au- 
thors assert,  was  invented  by  the  Amalfitans,  who,  in 


author  undertook  a  pilgrimage  to  Florence,  where  he  spent  several 
years  in  the  study  of  a  single  manuscript.  See  Gibbon,  chap.  4I-, 
note.     See  also  Giannone,  htoria  di  Sapoli,  lib.  xi.  ch.  1 1  .,..T. 


876  THE  MARITIME  LAAV        Part  I 


The  Code  called  the  Amalfitan  Table. 


my  opinion,  were  only  the  improvers(332)  of  it,  a  na- 
tion so  experienced  in  navigation,  would  undoubted* 
ly  be  desirous  of  regulating  commerce  by  a  particu- 
lar Code  of  Jaws. 

5.  Martin  Freccia,  who  wrote  in  1570,  speaks  of 
a  work  of  naval  jurisprudence,  called  the  Amalfitan 
Table.  He  affirms,  that  it  eclipsed  the  Rhodian  law ; 
that  by  this  Code  all  maritime  affairs  were  decided  ; 
and  that  in  his  time  it  possessed  more  authority  than 
any  other.(333)  Henry  Brenckmann  confirms,  and 
supports  the  opinion  of  Freccia  :  yet  he  leaves  in 
obscurity,  the  period  when  this  Tdble  was  formed. 
We  are  ignorant,  also, of  the  laws  which  it  contained, 
and  at  what  time  they  were  in  force  at  Amalphi,  since 
no  other  historian,  after  Martin  Freccia,  makes  men- 


(332)  See  my  Dissertazione  sulla  Bussola  nautico,  read  before  the 
Royal  Academy  of  Florence,  lO^h  September,  1793,  printed  by 
Pliilippi  Stecche,  in  which,  I  have  incontestibly  proved,  that  the 
French  were  the  first  inventors  of  the  mariner's  compass,  and  that 
the  Amalfitans  only  made  improvements  in  it ;  but  the  Portuguese 
first  carried  it  to  perfection,  and  successfully  employed  it  in  the  dis- 
covery of  tlie  new  world. 

(333)  In  regno  non  lege  Rhodia  fuaritima  decernuntur,  sed  Tabula, 
quam  Amalphitanam  vacant,  omnes  controversm,  of/ine.s  Ute,s,  et  omnia 
maris  discrimina  ca  lege,  ac  sanctione  usque  ad  heec  tcmpora  finiun- 
tur.  Freccia,  de  Subfeudis.  See  Giannone,  Isloria  Civile  di  Na- 
poli,  torn.  1,  liv.  7,  ch.  3,  p.  462,  &c.  and  Nicolas  Fortunalo,  Re- 
flessione  intorno  al  comuiercio  antico  c  moderno  del  regno  di  Napoli, 
lib,  1,  cap.  4,  and  D.  Paul  Jorio,  in  liis  celebrated  work,  enfitled,. 
Sloria  del  Coinmercio,  e  ddlu  Narigazione. 


Chal).  IV.  OF  EUROPE.  377 


Eleanor,  dutchess  of  Giiienne,  coinpiled  the  Role  d'Oleron.  » 


tfon  of  them,  except  M.  Signorelli,  who,  in  his  excel- 
lent work,  entitled,  Delia  Coltura  dell  dueSicilie,  §  7, 
drops  but  one  unimportant  word  concerning  them. 


ARTICLE  X. 

Of  the  Laws  of  Oleron. 

§  1.  THE  people  of  every  state,  conforming  to 
the  primitive  laws  unfolded  in  the  preceding  pages, 
have  formed  for  themselves  a  system  of  maritime  le- 
gislation, adapted  to  their  own  constitution,  and  local 
usages  ;  but  the  fundamental  principles  have  been 
taken  from  the  ancient  sea-laws. 

2.  Queen  Eleonora,  dutchess  of  Guienne,  on  her 
return  from  the  Holy  land,  observing  the  high  repu- 
tation of  the  Consolato  del  Mare,  which  had  acquired 
the  authority  of  law  throughout  the  Levant,  immedi- 
ately caused  a  compilation  to  be  made  of  the  mari- 
time sentences  and  judgments  of  the  West,  under  the 
title  of  Role  d'Oleron,  from  the  name  of  the  island  on 
the  coast  of  Guienne,  and  which  she  intended(334) 
should  serve  as  rulesof  decision  in  all  questions  relative 
to  navigation  and  maritime  commerce.     Her  son  Ri- 


(334-)  Tlie  island  of  Oleron,  is  situated  at  two  leagues  distance 
from  thecoast  of  France,  near  Roclielle  ;  it  is  five  leagues  in  length 
and  two  in  breadth,  and  contains  12,000  inhabitants,  most  of  whom 
are  excellent  seamen. 

Vol..  r.  ^-p. 


378  THE  MARITIME  LAW         Part  L 

Richard  I.  adopts  and  improves  the  laws  of  Oleron. 

chard  I.  king  of  England,  and  duke  of  Guienne,  af- 
terwards adopted  this  collection,  to  which  he  added 
various  decisions  relative  to  maritime  affairs,  preserv- 
ing, however,  the  title  of  Rokj  or  Jugement  d'Ole- 
ron. 

3.  It  is  from  these  additions,  that  Selden(335)  in- 
fers, that  the  Role  d'Oleron  is  an  English  work,  pub- 
lished by  Richard,  in  his  character  of  king  of  En- 
gland ;  and  this  has  been  repeated  by  Blackstone.* 
(336)  But  it  is  only  necessary  to  glance  at  the  work, 


(335)  Ut  quentadmodum  Rhodicc  leges  nauticoe,  seculis  in  vetuS' 
tiorihus  Rhodios  fuisse  Greed  maris  dominos  (ut  res  ipsa  se  habet) 
prohant,  ita  Oliarenscs  leges  hujusmodi  vim  in  mart  sortitce,  a  primu 
earum  institutione,  Auglics  regem  ulpote  auctorevi  suutn,  maris  cir^ 
cumvicini  dominum  nunquam  non  recognoscunt.  Selden,  Mare  Clau- 
sum,  lib.  2^  cap.  24,  p.  462. 

(336)  Commentaries,  Vol.  I.  page  417,  and  Vol.  IV.  page  425, 
12lh  edition. 

*  Blackstone  refers  to  the  Us  et  Coutumes  of  Cleirac,  and  to  the 
4th  Institute,  p.  144.  Coke's  authority  is  a  passage  in  the  cele- 
brated record  in  the  Tower  of  London,  before  mentioned,  which  is, 
in  fact,  the  authority  for  the  assertion  of  Selden,  Blackstone,  and 
the  other  English  lawyers.  The  words  are,  2w«  quidem  leges  ct 
statuia  per  dominum  Richardum  quondain  regem  Anglicc  in  reditu  suo 
a  Terra  Sancta  correcta  fuerunt,  inteipntata,  et  in  insula  Oleron 
publicata,  et  riominata  in  Gallica  Lingua,  La  Ley  Olj/ronne.  The 
laws,  and  statutes  here  referred  to,  are  those  made  under  former 
kings  of  England,  relative  to  the  court  of  admiralty,  for  the  preser- 
vation of  peace,  and  the  punishment  of  all  offences  committed  oa 
the  Britisli  seas,  and  the  concluding  sentence  above  quoted,  leaves 
the  matter  in  so  much  obscurity  that  it  can  hardly  be  inferred  from 


Cliap.  IV.  OF  EUROPE.  379 


The  Role  d'Oleron  is  not  »n  English  work. 

■  *  .  ,  ■■ 

to  be  convinced,  that  those  two  writers,  from  a  desire 
to  flatter  their  nation,  have  erroneously  attributed  to 
Richard,  the  glory  of  having  composed  this  Code  y 
not  considering  that  queen  Eleonora  was  at  that 
time  dutchess,  and  her  sons,  dukes  of  Guiennc,  for 
which  reason  it  was  written  in  their  native  tonf^ue. 
The  Role  d'Oleron,  was  published  about  the  year 
1 130,  when  Eleonora  was  wife  of  Lewis,  the  younger, 
by  whom  she  was  repudiated,  and  the  marriage 
declared  null,  by  the  council  of  Beaugenci,  the  18th 
March,  1152,  on  account  of  relationship,  though 
they  had  cohabited,  as  married  persons,  for  near  fif- 


it,  that  Richard  I.  was  the  original  compiler  of  the  laws  of  Oleron, 
though  they  might  have  been  afterwards  pubhshed  in  his  name. 
The  copy  of  the  laws  of  Oleron,  inserted  in  the  Collection  of  Sea 
Lams,  and  referred  to  by  Selden,  bears  date  in  1266;  though  the 
English  compiler,  and  Selden  seem  to  conclude,  that  this  date  is 
cither  erroneous,  or  that  the  copy  is  not  an  original,  but  a  subse- 
quent one  certified  by  some  notary.  Cleirac  asserts,  that  |hese 
laws  were  originally  compiled  and  published  by  Eleonora,  as  men- 
tioned in  the  text ;  but  that  Richard  II,  on  his  return  from  the  Ho- 
ly land,  made  additions  to  them,  and  the  whole  were  republished 
in  Gascon  French.  Eleonora  was  the  daughter  and  heir  of  William 
duke  of  Guiennc,  and  earl  of  Poictou,  and  married  to  Lewis  VII, 
of  France,  whom  she  attended  in  his  crusade ;  but  she  was  di^ 
vorced  in  1152,  and,  six  weeks  after,  married  Henry  II,  king 
of  England,  who  thus  acquired  all  her  dominions,  and  was  suc- 
ceeded by  his  son  Richard  I.  (Hume's  History,  Vol.  II.  p.  !i67 .) 
Emerigon,  in  the  preface  to  his  work  on  assurances,  after  citing 
Cleirac,  Selden,  and  Blackstone,  concludes  with  saying,  on  looking 
over  the  Code,  it  will  be  seen,  that  it  was  made  lor  the  province 
of  Guiennc,  and  being  the  work  of  :i  vassal  of  France,  it  properly 
belongs  to  that -country T. 


S80  THE  MARITIME  LAW        Part  I. 

Opinions  of  vvTiters  as  to  the  orighi  of  the  laws  of  Oleron. 

teen  years.  She  married,  on  the  1 8th  May,  in  the 
same  year,  Henry,  duke  of  Normandy,  and  count  of 
Anjou,  son  of  Godfrey  the  fair,  or  PJantagenet,  after- 
wards, king  of  England.  Richard  the  first,  the  third 
son  of  Henry  and  Eleonora,  did  not  succeed  his  fa- 
ther as  king  of  England,  until  the  third  of  Septem- 
ber, 1189,  when  he  was  crowned  at  London,  conti- 
nuing, however,  duke  of  Acquitaine  conjointly  with 
Eleonora,  who  was  still  living.  Besides,  as  the 
Jugement  d' Oleron,  related  solely  to  the  naviga- 
tion of  the  sea  of  Gascogny,  and  from  Bordeaux  to 
Rouen,  without  any  regard  to  the  navigation  of  En- 
gland, all  that  can  be  said  in  favor  of  the  pretension 
of  the  English  is,  that  Richard,  who  published  it, 
must  be  considered  as  acting  at  the  same  time  in  his 
character  of  king  of  England. (357)  But  if  the  Juge- 
ment (TOleron,  had  been  an  English  work,  would  it 
have  confined  its  regulations  to  this  small  portion  of 
the  sea  ?  Would  it  not  have  spoken  of  the  channel, 
the  Irish  sea,  and  other  parts  of  the  ocean,  which  En- 
gland at  that  time  considered  as  her  own  dominion  ? 

4.  If  we  reflect  a  moment  on  the  contents  of  this 
Code,  it  will  be  readily  seen,  that  it  was  compiled  for 


(337)  Vinnius,*in  his  Preface,  ad  Peckium,  and  in  his  Commen- 
tary ad  leg.  1 .  of  the  Digest,  tit.  ad  legem  Rhodiam.  Cieirac^ 
Us  et  CoUumes  de  la  Mer.     Introduction. 


*  Vinnius  merely  refers  to  the  laws  of  Oleron,  as  the  maritime  law  of 
France T. 


Chap.  IV.  OF  EUROPE.  381 

Cleirac's  cdilion  of  tlie  laws  of  Oleron. — Wisbuy. 

Guienne  only,  and  that  it  belongs  to  France,  since  it 
was  the  work  of  a  vassal  of  the  crown,  and  related  to 
a  province,  at  that  time  a  fief  of  the  French  monar- 
chy.* 

5.  The  JiLgement  d^ Oleron  is  contained  in  the 
first  part  of  Clcirac,  who  has  explained  it  by  an  ex- 
cellent commentary  ;  but  he  makes  no  mention  of 
marine  assurance,  nor  does  it  contain  any  thing  rela- 
tive to  marine  interest,  or  the  contract  of  bottomry. 
Perhaps  this  contract  was  not  known  at  the  time  this 
compilation  was  made,  or,  at  least,  was  not  in  use 
in  France. f 


ARTICLE  XL 

Of  the  Laws  of  Wisbuij. 

§  1 .  AFTER  the  Jugement  d'Oleron,  there  ap- 
peared a  compilation  of  ordinances,  by  the  merchants 
and  burgesses  of  Wisbuy,  a  city  in  the  island  of  Goth- 
land, belonging  to  Sweden,  situate  in  the  Baltic  sea, 
and  in  the  diocese  of  Lincossen.  This  city  was  for- 
merly the  most  flourishing  mart,  and  fair  in  Europe  ; 
at  present,  it  is  almost  in  a  state  of  ruin. 

*  Emerigon,  Traite  des  Assurances,  Preface,  page  1 1 T. 

-j-  In  the  Preface  to  the  laws  of  Oleron,  inserted  in  the  Collection 
of  Sea  Laivs,  p.  117,  the  author  gives  the  introduction  of  Cleirac 
at  length;  and  contents  himself  with  saying,  (hat  "  his  arguments 


a8'3  THE  MARITIME  lAAV         Part  I. 


Origin  of  tlie  city  of  Wisbuy. — A  mistake  concerning  it. 

2.  Wisbuy*  is  derived  from  Wineta,  a  city  of  the 
island  of  Usedom.  This  island  having  been  swal- 
lowed up  by  the  ocean,  the  Goths  built  Wisbuy,  to 
which  they  transferred  the  inhabitants  who  had  es-^ 
caped  from  the  destruction  of  Wlneta,(338)  which, 
on  account  of  its  advantageous  position,  at  the  mouth 
of  the  Oder,  had  become  a  place  of  considerable  trade. 
The  learned  Philip  Melancton,  and  AdamBremens, 
who  speak  of  Wineta,  call  it  Veneta.  This  resem- 
blance to  Venetia,  the  name  for  Venice,  has,  perhaps, 
led  some  wTiters  into  an  error.  They  pretend  that,  a 
short  time  before  Charlemagne,  the  island  of  Rhodes 
having  lost  its  former  splendor,  by  the  irruption  of 
various  tribes  of  barbarians,  and  especially  by  the 
Saracens,  who  seized  on  most  of  the  islands  of  the 
?^Iediterranean,  commerce,  and  nautical  science  pas- 
sed from  the  island  of  Rhodes,  and  the  Mediterra- 
nean, to  the  island  of  Gothland,  and  the  Bahic  sea. 
But  the  distance  of  these  places  from  each  other,  ren- 
ders this  supposition  inadmissible.  We  have,  besides, 
monuments  of  the  maritime  power  of  the  Northern 
nations,  and  of  their  skill  in  the  art  of  navigation. 


are  so  poor  that  they  hardly  need  an  answer."  The  reader  is  fur- 
ther relbrred  to  the  Introduction  to  the  System  nf  the  Laxv  of  Ma- 
rine Insurance,  by  I.  A.  Park,  p.  30,  3 1  ;  and  to  the  Treatise  on  the 
Lav:  of  Insurance,  by  Samuel  Marshall,  p.  16,  of  the  Introduce 
tion....T. 

*  See  the  Preface  to  the  "  Laws  of  Wisbuy,"  in  the  "  ColJe^:^ 
tion  of  Sea  La\vs."....T. 

(338)  Petrus  Berth,  Comment,  in  Wysbia,  lib.  3. 


Chap.  IV.  OF  EUROPE.  383 


The  laws  of  Wisbiiy  were  publishai  in  the  12th  ccsiturj-. 


that  render  it  necessary  to  recur  to  a  more  remote 
aDra.  We  read  in  Tacitus,  that  the  SueoncSy  or  the 
Swedes,  surrounded  by  the  seas,  were  powerful  on 
the  ocean  ;  and  that  their  vessels,  more  commo- 
dious than  those  of  the  Romans,  and  on  account  of 
their  having  double  prows,  might  touch  the  land 
without  being  turned  round. (3 39.) 

3.  The  laws  of  Wisbuy,  so  celebrated  by  the  wri- 
ters of  the  12th  century,  at  which  time  this  mari- 
time Code  made  its  first  appearance,  as  the  pre- 
face preserved  by  Leibnitz, (3 40)  in  an  ancient  ma- 
nuscript informs  us,  are  a  proof,  that  maritime  com- 
merce had  long  flourished  in  the  Northern  countries 
of  Europe.  These  laws,  at  their  first  origin,  were 
adopted  by  all  the  nationsof  the  North  ;(341)  butthe 
precise  time  is  not  known,  and,  if  we  may  believe 
Selden,  it  was  not  prior  to  the  year  1288.(342) 

4.  The  Northern  writers  pretend,  that  the  laws 
of  Wisbuy  are  anterior  to  those  of  0/i7wz.(343)  Clci- 


(339)  Tacitus,  de  Moribus  German,  cap.  44. 

(340)  Script.  Rerian  Brunsick,  (om.  5,  p.  750. 

(341)  Olaus  Magnus,  Ilistor.  lib.    10,  cap.  IG.     Herherstein, 
Herum  Miiscovit,  Cumment.  p.  1  IS. 

(342)  Selden,  Mare  clausum,  lib.  2,  cap.  24. 

(343)  Kuricke,  Ruhr,  ad  Jus  Marit.  Hnnseat.  p.  jS7.    Lubeck, 
de  Atari  is,  p.  105. 


384  THE  MARITIME  LAW        Parti. 


The  laws  of  Wisbuy  were  received  among  all  tlie  nations  of  the  North. 


rac,  in  the  preface  to  his  work,  entitled.  Us  et  coil- 
times  de  la  mer,  strongly  asserts  the  contrary,*  and 
his  opinion  is  confirmed  by  Limier,  in  his  history  of 
Sweden.  He  pretends,  that  they  were  held  in  as 
hio-h  esteem  in  the  Baltic  sea,  and  among  all  the  na- 
tions of  the  North,f  as  were  the  Rhodian  laws,  and 
the  Jugement  d'Olero?i,  in  other  parts  of  the  world. 
This  led  Bouchard  to  consider  them  as  a  supplement 
to  the  Role  d'Olero?i.{344)  However  this  may  be, 
Grotius(345)  pretends,  that  the  authority  of  these 
laws  extended  to  Denmark,  and  Sweden,  and  that 
they  were  adopted  by  the  nations  beyond  the  Rhine. 
Lex  Ehodia  navalis  pro  jure  gentium  in  illo  mari  Me. 
diterraneo  vigebat,  sicut  apud  Galliam  leges  Oleronis 
etapud  omnes  Transrhenanos  leges  Wisbuenses.  Per- 
haps Grotius  did  not,  at  that  time,  know  of  the  Con- 
solato  del  Mare.(346) 

5.  The  45th  article  of  this  Ordinance,  makes  slight 
mention  of  the  contract  of  Bottomry,  and  the  68th 


*  See  Emerigon,  Trade  des  Assurance,  Preface,  page  xi T. 

■\  Loccenius,  de  Jure  Maritimo  et  Navali  in  Praefat. — Suce  leges 
(Wyshyenses )  eandem  ferine  uuthoritatem  hodie  obtinent  quam  olim 
leges  Wiodlce.  Certe  apud  Transhenanos  populos,  respub.  Ilanseati- 
cas,  et  in  Regnis  Borealibus  communl  usu  reccptm  et  quasi  jure  civi- 
taiis  donatce  sunt....T. 

(S^i)  Bouchard,  Theoric  des  Traite  de  Commerce,  chap.  4, 
sec.  3. 

(345^  Grotius,  Mare  liberum. 

f3V6)  Olaus  Magmis,  and  Heberstein,  ibid. 


Chap.  IF.  OF  EUROPE,  385 


Of  the  laws  of  Marseilles — Origin  of  tliat  city. 


article  speaks  of  sureties  given  for  ships.  It  ap- 
pears, from  this,  that  the  contract  of  assurance,  had, 
at  that  time,  begun  to  be  introduced  into  commerce, 
under  the  name,  and  form  of  surety  ;  and  that,  conse- 
quently, tlierc  is  no  foundation  for  the  opinion  enter- 
tained by  some  writers,(347)  that  the  origin  of  assur- 
ances cannot  be  traced  further  back  than  the  15th 
century.* 


ARTICLE  XIL 

Of  the  Laws  of  Marseilles. 

§  I.  THE  city  of  Marseilles,  founded  by  the  Pho- 
ceans,(348)  the  most  expert  navigators  of  ancient 
times,  was,  at  first,  an  aristocratic  republic. (349)  The 
example  of  its   founders  powerfully  contributed  to 

(34-7)  Stypmanus,  dejurc  Marit.  part  4,  cap.  11,  art.  1,  n.  3. 
Ansald,  de  Commercio,  disc.  70,  n.  6.  Casaregis,  de  Cononercio, 
disc.  2,  n.  3.     Gibbalinus,  de  Usuriis,  lib.  4,  cap.  11,  art.  1. 

*  An  English  translation  of  the  laws  of  Wisbuy,  in  70  articles, 
is  contained  in  the  "  Collection  of  Sf^a  Laws."  They  were  ori- 
ginally published  in  the  Teutonick  language,  and,  according  to 
Olaus  Magnm,  lib.  10,  cap.  16,  were  respected  and  received  on  all 
the  coasts  of  Europe,  from  Muscovy  to  the  Mediterranean. ...T. 

(34S)  The  ancient  medals  of  Marseilles,  on  which  is  represent- 
ed a  head  of  Minerva,  the  divinity  of  the  Phoceans,  seem  to  con- 
firm this  idea  of  its  origin. 

(349)  Aristotle,  Politics,  lib,  6,  cap.  7, 
Vol.  r.  3C 


386  THE  MARITIME  LAW        Part  L 


Pliny  and  Cicei'o  highly  commend  the  laws,  8x.  of  Marseilles. 


strengthen  the  natural  propensity  of  its  inhabitants  to 
maritime  commerce,  the  great  object  of  their  policy. 
By  its  wise  and  prudent  institutions,  according  to 
Cicero,(350)  more  easily  admired  than  imitated,  play- 
ers, and  all  those  who  under  the  cloak  of  religion 
lived  in  voluptuousness,  were  banished  from  the 
<?ity.(351)  A  celebrated  academy,  where  the  youth 
were  instructed  in  every  kind  of  learning,  contribut- 
ed to  raise  the  sciences  and  fine  arts,  in  Marseilles, 
to  the  highest  degree  of  perfection.  It  deserved, 
therefore,  the  appellation  given  it  by  Cicero,  of  the 
Athens  of  Gaul,  Galliarum  Athende  ;  and  the  name 
bestowed  by  Pliny,  the  mistress  of  liberal  studies, 
Magistra  Stiidiorum,  The  Roman  youth,  according 
to  Strabo,  went  to  form  their  minds  in  its  schools ;  and 
many  cities  of  Italy  were  eager  to  entrust  the  charge 
of  public  instruction  to  the  learned  citizens  of  Mar- 
seilles.(352)  Cicero  could  not  refrain  from  express- 
ing an  opinion,  that  the  excellent  discipline  establish- 


(350)  Cicero,  pro  Flacco,  cli.  26,  Ut  omnes  ejus  instituta  laudari 
facilius  possint  quam  cEinulari. 

{55  1 )  Inde  Massilienses  quoqiie  ad  hoc  tempus Eadtm  civitas 

severiiatis  cuitos  accerrima  est;  nullum  aditwn  in  scenam  mimis 
dando.  Omnibus  autem,  qui  per  aliam  religionis  sitnulationem  ali- 
menta  inertia  querunt,  clausas  porlas  habent.  Valerius  Maximus, 
de  Exter.  Instit.  lib.  2,  cap.  6,  §  7. 

(352)  See  m)'  two  Essaj/s  on  the  marili?tie  voyages  of  Pythias  of 
Marseilles,  read  at  the  public  sittings  of  the  academy  of  that  city, 
the  J  0th  July,  1803. 


Chap.  IV.  OF  EUROPE.  387 

Excellent  maritime  i-e^lations  have  long  existed  at  Marseilles. 

ed   in  that  city,  was  superior,  not  only  to  that   of 
Greece,  but  to  that  of  every  other  nation. (353) 

2.  Mornac  and  Giballinus  assert,  that,  after  the 
example  of  the  Rhodians,  the  Marseilloise  published 
naval  laws,  which  they  caused  to  be  engraved  on 
stone,  "  Eorum  leges  lonico  more  erant  public^  pro- 
posita  ;"  but  they  have  been  destroyed  by  time. (354) 

3.  The  republic  of  Marseilles,  was  wisely  govern- 
ed, and  maintained  its  excellent  principles,  for  a  long 
period.  The  municipal  ordinances,  published  in  the 
13th  century,  contain  many  chapters  on  navigation, 
and  maritime  contracts,  which  are  worthy  of  the  most 
enlightened  ages  of  antiquity.  The  Marseilloise 
may  be  proud,  that  their  ancient  naval  laws  are  not 
lost  ;  engraven  on  their  hearts,  they  have  been 
transmitted  from  age  to  age,  and  are  sufficient  to 
preserve  and  clierish  that  love  of  equity,  and  that 
ardent  commercial  spirit,  which  render  that  city  the 
richest  port  in  the  Mediterranean. (355) 

(333)  Cvjus  ergo  civitaiis  disciplinaui  atque  gravitatem  von  solum 
Grcecice,  sed  liaud  sio  an  cunctis  gentibus  anteponendam  dlcam.  Ci- 
cero pro  Flacco,  ib. 

(334)  Mornac,  on  the  9tli  law.  of  the  tit.  of  the  Digest,  ad  legetn 
Uhndiam  dejactu.  Quondam  a  Ma.ssiliensihus  plurinuv  leges  nauticcc^ 
instar  Rliodiorum,  condiltr  fuerunt,  quus  hodie  ignoramus,  eo  quod 
tcl  injuria  temporum,  vcl  hominum  ignavia  perierunt.  Giballinus, 
lib.  4,  cap.  11,  art.  2,  n.  2. 

(353)  See  the  Introduction  to  the  excellent  work  of  M.  EmerL- 
gon,  entitled,  TraitC-  des  Assurances. 


388  THE  MARITIME  LAW         PartL 

Origin  of  the  Hanseatic  confederacy. 

ARTICLE  XIII. 

Of  the  Laws  of  the  Hanse-Tozvns. 

§  1.  THE  confederation  of  the  Hanseatic  cities, 
called  Hanse-Teutom'cky[S56)  originated  at  Bremen, 
a  city  of  lower  Saxony,  in  Germany,  in  the  year  1164^ 
and  became  afterwards  so  considerable,  that  it  reck- 
oned, under  its  dependence,  sixty-two  cities,  without 
comprehending  those  of  many  of  the  states  of  Eu- 
rope, which  afterwards  joined  the  league,  on  account 
of  the  immense  increase  of  commerce  the  confeder- 
ate cities  acquired  by  means  of  their  union. (357)* 

2.  There  was  nothing  military  in  the  first  institu- 
tion of  this  confederacy  :  Its  principal  object  was  a 


(356)  This  was  an  union  of  privileges  and  rights  termed  Aenzee 
Steden  ;  that  is,  steden,  cit) ,  and  aenzie,  on  the  sea.  These  words 
were  afterwards  abbreviated  into  anserche  or  ansesche.  The  French 
pronouncing  this  word  after  their  manner,  have  made  it  hanse^  tak- 
ing this  word  to  mean  a  company,  or  an  alliance. — Raguenau,  at 
the  word  Hanse. 

(357)  Ang.  de  Werdenhagen,  de  rebus  publicis  hanseaticis. 
Emman,  de  Meteren,  in  his  Chronicle. 

*  See  also  Anderson's  History  of  Commerce,  Vol.  I.  p.  209, 
(Dubhn  edition.)  Werdenhagen  makes  the  word  hanse  to  signify,  on 
the  sea.  The  Hanseatic  league  is  called  by  the  French,  Hanse 
Teutonique,  which  is  the  tide  of  this  article.  Werdenhagen  gives 
a  minute  account  of  the  origin  and  progress  of  all  the  towns  ad- 
jpitted  into  this  confederacy.  See  also  Cleirac,  page  160,  Co//fc- 
iion  of  Sea  Laws,  p.  191....T. 


Chap.  IV.  OF  EUROPE.  S89 


The  Hanseatic  union  was  orig-inally  commercial,  and  not  military. 


mutual  participation  of  privileges  among  the  con- 
tracting parties,  in  regard  to  commerce,  not  for  any 
determinate  time,  as  is  usual  in  all  warlike  confedera- 
cies, but  for  an  indefinite  period.  In  the  lapse  of  time, 
there  were  formed,  among  the  Hanseatic  towns,  as- 
sociations of  the  other  kind,  as  in  1370,  when  the 
confederacy  declared  war  against  Waldemar  III, 
king  of  Denmark,  and  on  several  other  occasions. 
The  latter  associations  were  entered  into  by  special 
conventions,  and  for  limited  periods.  They  were  in- 
cidents of  the  Hanseatic  league,  but  formed  no  part 
of  the  basis  of  the  structure.  It  is  evident,  therefore, 
that  the  Hanseatic  confederaci),  was  originally  nothing 
more  than  articles  of  copartnership,  by  which  the  ci- 
ties who  were  made  parties  to  the  contract,  divided 
the  profits  of  the  trade  carried  on  by  the  aid  of  the  as- 
sociation. The  jealousy  of  the  powers  of  Europe,  pri- 
vate interest,  and  the  force  of  time,  have  reduced  the 
members  of  this  wise  institution,  to  the  cities  of  Lu- 
beck,  Hamburg,  Dantzic,  Bremen,  Rostock,  and 
Cologne. 

3.  The  deputies  of  this  confederacy,  sensible  of  the 
necessity  of  particular  laws  to  regulate  their  com- 
merce, enacted,  in  their  general  assembly,  some  or- 
dinances relative  to  navigation.  They  were  publish- 
ed for  the  first  time,  at  Lubeck,  in  the  year  1591,  and 
not  in  1597,  as  Cleirac,  and  Emerigon  have  assert- 
ed.(358] 


(.'35S)  Cleirac,  Vs  et  Couluvits  de  la  Mer,  p.  195.    Emerigon, 
Traite  des  Assurances,  torn.  1.  preface  13. 


390  THE  MARITIME  LAW        Pari  I, 

Laws  and  ordinances  of  the  Hanse-Towns. 

4.  On  the  23d  of  May,  16 14,  the  deputies  of  these 
cities  assembled  again  at  Lubeck,  when  they  cor- 
rected, and  enlarged  their  former  regulations.  This 
last  compilation,  is  entitled.  Jus  Hanseaticum  mara- 
timiim.  The  different  matters  are  distributed  into  a 
creat  number  of  articles,  and  divided  into  fifteen 
chapters,  or  titles.  It  is  better  arranged  than  the 
first,  but  is  nearly  the  same  in  substance.  The  dif- 
ference consists  in  a  few  corrections,  and  alterations. 
It  is  written  in  Latin  and  German,  and  is  to  be  found 
in  the  work  of  Kuricke,  entitled,  Ad  Jus  viaritimum 
Hanseaticum,  enriched  with  many  excellent  notes. 
It  is  also  inserted  in  the  French  language,  together 
with  the  ordinances  of  Wisbuy,  in  the  collection  of 
Cleirac,  next  to  the  laws  of  Oleron.*  Among  these 
ordinances,  some  mention  is  made  of  the  contract  of 
Boltomry  ;  but  not  a  word  is  said  on  that  assurance. 
Conditiones  juris  maritimi  Hanseatici,  mater iam  as- 
seau^ationis  sicca  plan}  pede  prater ierunt,  says  Ku' 
ricke,  in  his  Diatriba  de  assecurationibus.'\ 


*  In  Cleirac,  p.  157,  the  Hanseatick  laws  are  divided  into  60 
articles.  In  Kuricke,  where  they  are  arranged  under  15  titles,  the 
number  of  articles  amount  to  an  hundred.  An  English  translation 
of  them  in  60  articles,  is  inserted  in  the  "  Collection  of  Sea  Laws," 
p.  195 T. 

f  Kuricke,  Diatriba  de  Assecurationihus,  preface.  See  also 
jEmerigon,  torn.  1,  preface,  p.  xiii....T. 


Chap.  IV.  OF  EUROPE.  39 1 


Maritime  laws  of  France. — Le  Guidon. 

ARTICLE  XIV. 

Of  the  Laws  of  France. 

§  1 .  FOR  a  long  period,  France  possessed  no  par- 
ticular maritime  laws,  except  those  contained  in  a 
compilation,  entitled,  le  Guidon  de  la  mcr,  or  Us  et 
coutinnes  concernant  les  droit  maratimcs,  qui  furent 
adopt es  en  faveur  de  la  ville  de  Bouen.  The  Guidon 
contains  also  some  ancient  ordinances  of  the  king- 
dom, relative  to  the  merchant  marine,  of  1400,  1517, 
and  1584,  making  a  part  of  the  royal  ordinances  of 
the  admiralty.* 

2.  Louis  the  XlVth  laid  the  foundation  for  the 
prosperity  of  navigation  and  maritime  commerce, 
and  secured  its  future  progress,  by  increasing  his 
naval  power,  and  by  rendering  a  great  number  of  ports 
and  harbours  more  commodious,  more  secure,  and 
easy  of  access. (359)  Nothing  was  wanting  to  crown 


*  Ze  Guidon  is  to  be  found  in  the  2d  part  of  Cleirac,  Us  et  Cou' 
tumes  de  la  Mer,  page  179.  Neither  the  author  of  this  collection, 
nor  the  date  of  its  compilation,  is  mentioned.  It  consists  of  twen- 
ty chapters,  several  of  which  relate  to  the  subject  of  assurance ; 
and  though  its  language  is  obsolete  and  incorrect,  it  contains  many 
valuable  principles  of  maritime  law T. 

(359)  During  the  minority  of  Louis  XIV,  France  had  neither 
arsenals,  naval  stores,  ship  timber,  nor  even  ports;  for  to  ]ia\e 
them  inaccessible  and  useless,  was  the  same  as  to  have  none.  Ai 
the  death  of  Cardinal  Mazarine,  the  whole  French  marine  consist- 
ed of  IS  ships,  from  SO  to  70  guns.     The  dearth  of  naval  stores 


392  THE  MARITIME  LAW        Part  I: 

Louis  XIV,  establishes  the  marine  of  France,  and  compiles  a  Code  of  laws- 

the  glory  of  so  noble  an  enterprise,  but  the  forma- 
tion of  a  Code  of  particular  laws,  in  which  should 
be  united  every  thing  necessary  to  instruct  ma- 
riners in  their  duties,  to  establish  the  police  of 
ports,  bays,  and  rivers,  to  determine,  at  the  same 
time,  the  rights,  privileges,  and  prerogatives  of  the 
admiralty,  the  order  to  be  observed  in  its  judicial  pro- 
ceedings, the  functions  and  duties  of  judges,  and  offi- 


was  so  great,  that  they  were  destitute  of  cables,  cordage,  sails,  &c. 
and  even  of  powder  and  matches.  Every  thing  was  wanted.  At 
first,  Holland  furnished  these  different  articles,  and  even  permitted 
the  French  to  build  two  ships  of  the  line  in  that  coimtry,  and  to 
establish  in  the  city  of  Amsterdam,  a  foundery  of  cannon  for  the 
naval  service.  See  Lett,  et  Nc^nc.  d'Estrad.  torn.  4,  p.  34-2,  &c. 
The  French  were  not  long  before  they  learned  how  to  dispense 
with  foreign  aid.  Ship-builders  from  the  United  Provinces,  mast- 
makers,  and  forgers  of  anchors  from  Sweden,  came  to  France;  Ri- 
ga, Hamburg,  and  Dantzick,  sent  rope-makers,  weavers,  &c.  All 
these  workmen  had  French  apprentices,  who,  in  a  short  time, 
equalled,  or  surpassed  their  masters.  A  general  review  of  all  the 
persons  fitted  for  the  naval  service  was  made,  and  60,000  men 
were  soon  arranged  into  classes.  Five  arsenals  were  erected,  and 
many  ships  built  in  the  dock-yards  of  France.  Brest  beheld  iti 
its  road  a  numerous  fleet  under  the  orders  of  the  duke  of  Beau- 
fort, consisting  of  fifty  ships.  In  this  number  was  not  included, 
the  Levant  squadron,  the  junction  of  which  v.rould  have  greatly 
increased  the  general  forces.  See  Beaufort's  Letters  to  de  Riii/icr^ 
the  \2thof  JuIt/,  1667.  This  prodigy  was  performed  by  the  ge- 
nius of  Colbert ;  for  it  was  truly  a  prodigy  to  create  a  marine  under 
circumstance;^  in  which  the  taste  of  the  nation,  and  so  many  moral 
and  physical  difficulties,  opposed  the  gigantic  projects  of  Louis 
XIV.  This  prince  extended  his  views  still  further.  He  wished 
(o  be  a  maritime  legislator,  and  he  became  cne. — Valin,  Preface  ci 
POydommn.ce  de  la  Marine. 


^hap.  IF.  OF  EUROPE.  393 


Ordinance  of  August,  1681,  and  its  commentators. 


cers,  employed  to  maintain  and  preserve  a  just  system 
in  maritime,  and  mercantile  affairs.  All  this  has  been 
admirably  performed  in  the  marine  ordinance,  of  Au- 
gust, 1681,  which  is,  without  contradiction,  the  most 
masterly  act  of  legislation,  promulgated  by  that  in- 
comparable monarch,  and  has  become,  in  some  sort, 
the  common  law  of  all  the  neighbouring  nations.* 

3.  This  ordinance  has  been  commented  upon  by 
three  different  writers.  Marville,  who  is  the  first, 
published  his  commentary,  in  1714,  which  met  with 
little  success,  though  there  have  been  six  editions  of 
it.  Valin,  whose  commentary  appeared  in  1760,  by 
the  excellence  of  his  observations  on  this  ordinance, 
in  the  new  edition,  published  at  Rochelle,  in  1776, 
is  justly  entitled  to  universal  approbation.  The  third, 
is  by  an  advocate  of  Marseilles,  of  the  name  of  Jaus- 
seau  ;  it  contains  some  notes  relative  to  the  particu- 
lar usages  of  that  place. 

4.  The  ordinance  of  1681,  excepting  the  title,  des 
Prises,  contains  nothing  relative  to  the  military  ma- 


*  Lord  Mansfield,  to  whom  the  laws  of  England  are  so  much 
indebted,  appears  to  have  derived  much  of  his  knowledge  of  mari- 
time law,  "  from  this  ordinance,  and  from  the  elaborate  and  useful 
commentary  of  Valin."  Marshall  on  Insurance,  Introduction,  p, 
J  8.  Mr.  Abbott,  in  the  preface  to  his  excellent  "  treatise  of  the 
law  relative  to  merchant  ships  and  seamen,"  in  speaking  of  this 
ordinance,  observes,  that,  "  in  matter,  method,  and  style,  it  is 
one  of  the  most  finished  acts  of  legislation  tliat  ever  was  promul- 
gated."...T. 

Vnr.T  3D 


S94  THE  MARITIME  LAW        Part  L 

Various  marine  ordinances. — New  plans  of  reform. 

rine.  It  was  preceded  by  a  collection  of  separate  or- 
dinances, published  in  1 675,  and  again,  in  1677  ;  but 
these  were  of  no  force  after  the  publication  of  the 
eeneral  ordinance,  of  1689,  to  which  the  subsequent 
ordinances,  in  1765,  and  1776,  made  some  slight 
amendments.  Since  the  revolution,  laws  of  the  great- 
est importance  relative  to  the  military  marine,  have 
been  published  j  but  as  these  are  not  yet  fully  settled, 
it  is  not  proper  to  give  any  account  of  them  here. 

5\  The  prosperity  of  the  maritime  commerce  of 
France,  having  given  rise  to  new  transactions,  to 
abuses  grown  into  usages,  and  to  principles  of  com- 
mercial jurisprudence,  which  could  not  be  foreseen 
in  framing  the  ordinances  of  1681,  it  has  become  ne- 
cessary to  make  an  entire  reform  of  the  laws  by 
which  the  affairs  of  maritime  commerce  are  to  be  re- 
gulated. These  circumstances  have  called  loudly  for 
such  revision.  It  was  directed  to  be  made  by  the  an- 
cient government;  but  at  that  time,  the  success  of  the 
best  schemes,  and  the  most  useful  reforms,  depend- 
ed on  the  stability  of  the  power  of  the  minister  who 
had  the  courage  to  propose  them,  and  maritime  legis- 
lation continued  in  this  imperfect  state  until  the  re- 
volution, during  which  it  degenerated  still  more. 

6.  The  consular  government,  more  steady  in  its 
plans,  and  more  energetic  in  their  execution,  con- 
ceiv^ed  the  important  project  of  a  reform  of  the  com- 
mercial and  maritime  laws.  By  a  decree  of  the  4th 
April,  1801,  it  established  a  commission,  under  the 


Cliai).  IV.  OF  EUROPE.  39& 


New  maritime  and  commercial  Code,  of  1802. 


direction  of  the  minister  of  the  Interior,  composed  of 
seven  members,(360)  who  were  to  digest  the  plan  of 
a  commercial  and  maritime  Code.  This  great  work, 
(to  which  I  have  had  the  honour  indirectly  to  contri- 
bute, having  been  invited  to  the  sittings  of  the  com- 
missioners, who  received  my  opinion  on  the  part  re- 
lative to  maritime  affairs)  has  been  completed,  and 
was  published  in  1802,  by  a  consular  decree,  of  the 
6th  December,  1802,  by  which  it  was  directed  to  be 
sent  to  all  the  tribunals,  and  councils  of  commerce, 
requesting  them  to  give  their  opinions  upon  it,  with- 
in a  certain  time. 

7.  If  it  be  honourable  for  the  persons  who  com- 
posed this  commission,  to  have  been  selected  to  pre- 
pare the  new  Code  of  laws,  for  the  regulation  of  com- 
merce and  the  marine,  and  to  have  acted  together 
with  an  unshaken  zeal  and  disinterestedness,  they 
have  received  a  recompense  the  most  pleasing  and 
the  most  flattering  to  their  ambition,  in  the  approba- 
tion and  praise  bestowed  by  the  very  persons  who 
must  become  the  judges  of  their  work.  The  justice 
thus  rendered  to  the  diligence  of  the  commission, 
and  to  the  sagacity  with  which  the  Code  has  been 
compiled,  has  encouraged  three  of  its  members,  M. 


(360)  These  were  M.  M.  Gomeaii,  Judge  in  the  Court  of  Ap- 
peals at  Paris ;  Boiirsier,  formerly  a  maritime  Judge  ;  Vignon,  the 
President  of  the  Tribunal  of  Commerce;  Lcgras,  a  lawyer;  Vital- 
Roux,  a  merchant;  Coulomb,  an  ancient  magistrate;  Mourgue, 
administrator  of  the  hospitals. 


396  THE  MARITIME  LAW         Part  /, 


Means  employed  by  the  compilers  to  perfect  the  new  Code. 


M.  Gorneau,  Legras,  and  Vital-Roux,  to  publish  the 
motives  which  guided  them  in  their  labours.  They 
have  given  an  explanatory  analysis  of  the  observa- 
tions made  by  the  tribunals,  councils  of  commerce, 
lawyers,  and  merchants,  on  the  plan  of  the  Code 
which  had  been  published,  and  have  themselves  pro- 
posed the  corrections  which  they  think  necessary  to 
per  ect  the  work.  This  excellent  production,  in 
wiiich  the  three  compilers  have  been  less  influenced 
by  self-love,  than  a  regard  to  the  public  good,  has 
produced  the  revision,  which  they  themselves  had  the 
liberality  to  propose,  of  the  Code  framed  by  the  mem- 
bers of  the  commission.  By  this  happy  efFect,the  work 
will  now  appear  as  the  result  of  the  united  wishes  of 
the  whole  nation  for  whom  they  undertook  it. — May 
this  wise  revision,  so  impatiently  expected,  be  soon 
submitted  to  the  government  for  its  sanction,  that  the 
interests  of  the  French  empire  may  be  consolidate^ 
on  a  permanent  basis  ! 


ARTICLE  XV. 

Of  the  Lazvs  of  England. 

§  1 .  ENGLAND  has  not  yet  thought  proper  to 
frame  a  system  of  maritime  laws.  This  is  owing, 
perhaps,  to  the  difficulty  the  English  have  to  encoun- 
ter, in  procuring  any  bill  containing  new  regulations 
to  be  passed  into  a  law.  They  prefer,  therefore,  to 
translate  into  their  language  the  Jiig€mentd'Oleron,2Lnd 
the  Us  et  Coutumes  de  la  mer^  by  Cleirac,  which  has 


Chap.  IV.  OF  EUROPE.  397 

•':: —  -  'i  ; 

Maritime  laws  of  England. 

passed  through  four  editions,  since  1661,  rather  than 
to  propose  to  the  government  the  formation  of  anew 
Code  of  commercial  laws,  though  the  nation  admits 
the  want  of  such  a  Code.(361) 

2.  There  exists,  therefore,  no  Enghsh  act  of  mari- 
time legislation,  except  the  great  merchant-char- 
ter(362)*  of  Edward  I — the   articles  agreed  to  at 


(36 1 )  Laws  of  the  admiralty  of  Great-Britain. 

(.362)  "  Thus,  in  mercantile  questions,  such  as  bills  of  exchange 
and  the  like;  in  all  marine  causes,  relating  to  freight,  average,  de- 
murrage, insurances,  bottomry,  and  others  of  a  similar  nature;  the 
law  merchant,  which  is  a  branch  of  the  law  of  nations,  is  regularly 
and  constantly  adhered  to.  So  too,  in  all  disputes  relating  to 
prizes,  to  shipwrecks,  to  hostages,  and  ransom-bills,  there  is  no 
other  rule  of  decision  but  this  great  universal  law,  collected  from 
history  and  usage,  and  such  writers  of  all  nations  and  languages 
as  are  generally  approved  and  allowed  of." — Blackstonc's  Com- 
mentaries, Vol,  IV.  p.  67.** 


**  In  the  paragraph  from  wliich  the  quotation  is  made  in  tlie  above  note, 
Blackstone  sufficiently  explains  wliy  their  maritime  laws  have  not  been  esta- 
blished by  any  statute,  oi'  act  of  parliamait  In  arbitran,"  goverments,  like 
those  of  France,  the  law  of  nations  is  enforced  by  tlie  royal  power.  In 
England  it  forms  a  part  of  the  law  of  the  land.  Thus,  the  lex  mercatoria, 
or  law -merchant,  as  it  is  called,  is  adopted  by  the  English  common  law, 
and  forms  a  part  of  the  law  of  the  land,  as  much  as  any  statute  relative  to 
the  dispasition  of  estates,  or  for  the  punishment  of  crimes.  This  law-mer- 
chant  is  grounded  on  the  usages  and  customs  of  merchants,  and  those  ge- 
neral rules  whicli  prevail  among  commercial  men  in  all  countries.  Though 
the  English  courts  do  not  allow  foreign  laws,  or  writers  to  have  any  binding- 
force  or  authority,  tlicy  refer  to  the  civil  law,  the  Rhodian  law,  the  Conso- 
hto  <\c\  Mai-o,  to  tJic  Jugcmcnt  d'OWon,  to  Ckirac.  Polhier,  and  other 


598  THE  MARITIME  LAW        I'art  I. 


The  maritime  laws  of  England. 


Queensborough,  by  Edward  the  third  jf  the  ancient 
statutes  relative  to  the  powers  of  the  admiralty,  and 


*  Our  author,  no  doubt,  means  the  statute  de  mercatorihus, 
passed  the  11th  of  Edward  I,  and  re-enacted  in  the  13th  year  of 
his  reign, — authorising  a  certain  recognisance,  or  security  to 
be  taken  by  merchants  for  their  debts,  and  hence  called  statute 
merdiant ;  by  virtue  of  which,  contrary  to  the  principles  of  feudal 
law,  the  body  of  the  debtor  might  be  imprisoned,  and  not  only  his 
goods  be  taken  in  satisfaction  of  the  debt,  but  his  lands  also  might 
be  delivered  to  the  creditor  to  be  held  by  him,  until  out  of  the  rents 
and  profits  his  debt  should  be  satisfied. — Reeves's  History  of  the 
English  Law,  Vol.  II.  p.  158.— Black.  Com.  Vol.  IV.  p.  426. 

,In  the  Magna  Charia  of  king  John,  chapter  3 1,  are  the  following 
remarkable  words:  Omnes  mercatores  habeant  salvum  et  securum 
exire  de  Anglia,  et  venire  in  Angliain,  et  viorari  et  ire  per  Angliam, 
tarn  per  terrain  quam  per  aquam,ad  emendum  et  xendtndum,  sine  otH' 
nibus  malisi  toltis  per  antiquas  et  rectas  consuetudines  prcierquam 
in  tevtpore  gii-erre,  et  si  sint  de  terra  contra  nos  giueriva,  ctsi  tales 
inveniuntur  in  terra  nostra  in  principio  gwerre  attachientur  sine 
dampno  corponan  et  reritm  donee  sciatur  a  nobis  tel  capitali  j'tisti- 
ciaro  nostra,  quo/nodo  mercatores  ierre  nostre  tractentur,  qui  tunc 
invenientur  in  term  contra  nos  gxverrita,  et  si  nostri  salvi  sint,  ibi  alii 
salvi  sint  in  terra  nostra.  Blackstone's  edition  of  Magna  Char- 
ta....T. 

f  See  Anderson's  History  of  Commerce,  Vol.  I.  p.  352,  Dublin 
edition,  Svo,  who  cites  Vol.  IV.  361,of  Rymer'sFedera....T. 


TiTiters,  as  containing-  evidence  of  the  law  of  mei'chants,  established  by  uni- 
versal consent  and  usage,  or  by  decisions  grounded  on  principles  of  tlie  law 
of  nature  and  nations,  and  which  may  serre  to  guide  their  judgments  upon 
points  not  settled  by  the  adjudications  of  tlieir  own  com-ts.  Where  doubts 
arise,  thequestions  aretriedb}-  a  jur}-,  which  may,  and  usually  does  consist  of 
merchants,  whose  verdict,  if  not  contrary  to  any  statute,  or  the  previous  de- 
cisioiis  of  the  court  on  the  same  point,  settles  the  law.    (Black.  Vol.  I.  page 


Chofy.  IV.  OF  EUROPE.  399 


The  British  navigation  act,  and  other  marine  regulations. 
'  "  '  •  •  ■     ■     » 

the  wardens  of  the  Cinque-ports  ;(363)  the  famous  act 
of  navigation,  framed  by  Cromwell,  but  which  did 
not  become  a  law  until  the  12th  year  of  the  reign  of 
Charles  lid,  the  23d  September,  1660  ;  some  acts  of 
parliament  to  regulate  marine  assurances,  assurances 
on  lives,  and  against  fire  ;  others,  relative  to  the  cus- 


(363)  The  five  Cinque-Ports  are  Hastings,  Dover,  Sandwich, 
Romney,  and  Hydie,  to  which  Rye,  VVinchelsea,  and  Sealord  have 
been  annexed.  These  towns  are  situated  on  the  coast  opposite  to 
France,  and  are  specially  charged  to  guard  against  an  invasion ; 
they  ha\'e  a  particular  governor,  called  the  lord  ziarden  of  the 
cinque-ports.  King  John  granted  them  many  privileges  and  courts 
of  their  own,  on  condition  of  tJieir  keeping  a  certain  number  of 
vessels  always  in  readiness  to  obey  his  orders. — Blackstone's  Com- 
mentaries, III.  p.  79, 


373.)  By  a  regulai*  series  of  judicial  determinations,  during  the  last  fifty 
real's,  the  law  of  assurance,  for  example,  \i  hich  forms  so  important  a  branch 
of  tlie  law-merchant  at  the  present  day,  has  been  erected  into  a  system 
scarcely  inferior  to  any  to  be  fuund  in  the  Codes  of  any  otlier  counti-y. 
These  decisions  have  been  collected  and  wel)  an  angcd  by  Park,  and  Mar- 
shall The  law  relative  to  ships,  their  owners,  and  persons  employed  in 
their  navigation,  charter-parties,  freight,  seamen's  wages,  salvage,  &c.  h.ns 
l)een  admirably  digested  by  Chai-les  Abbott.  The  enlightened  candour  and 
liberality  of  the  English  courts  of  judicature  in  adopting  sound  principles  of 
reason  and  good  faith  in  matters  of  commerce,  to  be  found  in  the  laws  re- 
ceived in  all  commercial  countries,  cannot  be  too  much  pruisttJ  and  atl- 
mired.  The  consequence,  howc^el•,  of"  this  practice  is,  tliat  the  Englisii 
system  of  maritime  jurisprudence  has  been  mucii  slower  in  its  for- 
mation, and  less  perfect  in  the  wiiole,  than  if  tlic  parliament  of  England, 
like  Louis  XlVtli,  had  collected  the  accumulated  wisdom  of  all  ages,  and 
countries,  on  marine  affairs,  and  digested  Uie  same  into  an  act  of  parlia- 
ment. The  different  modes  of  procec<ling  are  evidently  owing  to  th£  dif- 
ferent forms  of  government,  and  yf  iudlcatHre  pstabl-elied  m  the  two  roun 
1  i-ios ....  T'. 


iOO  THE  MARITIME  LAAV         Part  h 

Acts  of  parliament,  and  royal  instructions  as  to  commerce,  &c. 

toms,  to  the  augmentation  of  the  marine,  and  particu- 
larly that  of  1777,  concerning  merchant  vessels,  hav- 
ing letters  of  marque.  Besides  these  acts  of  parlia- 
ment, the  king  is  authorised  by  law  to  give  particular 
instructions  to  the  commanders  of  ships  of  war, 
and  privateers,  relative  to  the  vessels  of  foreign  na- 
tions.{364)*  There  are  also  some  particular  regulations 
as  to  maritime  police,  and  concerning  the  maritime 
courts.  These  courts  are,  the  high  court  of  admiral- 
ty, in  which  the  Lord  high  admiral,  or  his  deputy,  de- 
cides on  maritime  affairs,  and  captures  made  at  sea, 
in  time  of  war  ;  and  the  Court  of  Delegates,  nomi- 
nated by  special  commission,  and  to  which  an  appeal 
lies  from  the  admiralty  courts. -|- 


{oQ\^  Tlie  general  instructions  of  1776  may  be  seen  in  Hennings 
Samlung,  Von  Staats  Schristen,  torn.  2,  page  19.  The  particular 
instructions  given  in  1793  and  1794-,  are  in  the  collection  of  Mr. 
Martens. 

*  Those  of  1794-  and  1798  may  be  seen  at  the  end  of  the  third 
volume  of  Reports  of  Cases  in  the  High  Court  of  Admiralty,  by  C. 
Robinson.. ..T. 

f  There  appears  to  have  been  no  lord  high  admiral  since  Ike. 
accesion  of  the  house  of  Hanover.  The  king  now  holds  that  of- 
fice, though  in  a  manner  distinguishable  from  his  regal  character, 
and  it  is  executed  by  commissioners.  A  judge  of  the  high  court 
of  admiralty  is  now  appointed  by  a  commission  under  the  great 
seal.  It  may  be  said  to  consist  of  two  courts,  possessing  distinct 
jurisdiction,  and  held  by  distinct  commissions,  though  usually  given 
to  one  and  the  same  person.  One  is  called  the  instance  court,  pro- 
ceeding according  to  the  civil  law,  the  laws  of  Oleron,  and  other 
generally  received  collections  of  maritime  law,  the  customs  of  ad~ 


Cha}).  IF. 


OF  EUROPE. 


401 


Maiitime  laws  of  England  variable. 


3.  The  English,  then,  in  matters  of  maritime  ju- 
risprudence, are  obliged  to  have  recourse  to  the  Ro- 
man law,  and  to  the  common  law  of  the  kingdom. 
For  this  reason  the  system  of  mercantile  affairs  is 
often  varied  by  prohibitions,  as  to  matters  of  fact 
and  law,  in  regard  to  questions  litigated  in  their  ma- 
ritime courts. 


1/ 


miralty,  and  particular  statutes.  It  has  jurisdiction  of  all  matters 
arising  on  the  high  sea,  and  in  many  cases  concurrent  with  the 
courts  of  common  law.  This  is  the  ordinary  court  of  admiralty 
spoken  of  in  the  books  of  English  law.  The  other  court,  called 
the  prize-court,  has  the  solt  and  exclusive  jurisdiction  in  all  matters 
of  prize,  and  proceeds  according  to  ihe  law  of  nations.  Its  origin 
seems  obscure,  and  some  doubt  appears  to  be  entertained  whether 
it  could  not  be  held  without  a  special  commission.  It  is  held, 
however,  in  consequence  of  a  special  commission  issued  every 
war,  for  that  purpose.  An  appeal  lies  from  the  instance  court  to 
the  king  in  chancery,  who  appoints  delegates  to  hear  the  cause. 
From  the  prize  court,  it  lies  only  to  the  lords  commissioners  of  ap- 
peals, consisting  chiefly  of  the  king's  council.  Several  vice-admi- 
ralty courts  are  also  established  in  the  British  possessions  in  Ame- 
rica, from  vvhich,  when  acting  as  instance  or  revenue  courts,  an 
appeal  lies  to  the  high  court  of  admiralty,  and  when  as  prize- 
courts  to  the  lords  commissioners  of  appeals.  In  consequence  of 
the  strong  representations  made  to  the  government  of  the  great 
abuses  of  these  courts,  an  act  was  passed  the  2d  day  of  July,  1801, 
''for  the  better  regulation  of  his  majesty's  prize-courts  in  the  West- 
Indies,  and  America,  and  for  giving  more  speedy  and  effectual 
execution  to  the  decrees  of  the  lords  commissioners  of  appeals." 
This  act  may  be  seen  in  the  Appendix,  No.  3,  to  Robinson's  admi- 
ralty reports,  Vol  III.  As  to  the  origin  and  juridiction  of  the  En- 
glish courts  of  admiralty,  see  Brown's  I/nv  of  Admiralti/,  2d  edition, 
chapters  II,  IV,  V,  V^I,  and  VJII,  and  the  books  there  rited....T. 
Vor..  I.  :?  E 


402  THE  MARITIME  LA\V        Part  L 


of  the  maritime  laws  of  Holland. 


4.  In  1749,  a  bill  was  brought  into  the  house  of 
commons,  entitled,  a  bill  for  amendingy  explainingi 
and  reducing  into  one  act  of  parliament,  the  laivs  rela- 
ting  to  the  government  of  his  majesty  s  ships,  vessels, 
and  forces  by  sea  ;  but  the  difficulty  above  mention- 
ed, has  prevented  any  discussion  of  this,  or  any  othei 
regulation  on  the  subject. 


ARTICLE  XVI. 

Of  the  Laivs  of  Holland. 

§  I .  THOSE  who  know  that  the  Dutch  have  been 
always  engaged  in  maritime  commerce,  will  be  dis- 
posed to  believe,  that  they  have  digested  a  Code  of 
naval  laws.  Yet  Peckius  and  Vinnius,  their  princi- 
pal writers  on  this  subject,  have  done  nothing  more 
than  to  comment  on  the  Roman  law,  in  force  among 
them,  and  to  compare  it  with  the  usages  of  the  repub- 
lic. They  follow,  however,  those  laws  which  were 
observed  in  the  ancient  cities  of  Wisbuy,  West  Friez- 
land,  Rotterdam,  and  the  Hanse-Towns.  There 
are  in  Holland  no  laws  peculiar  to  the  country,  ex- 
cept those  made  by  Charles  V,  and  Philip  II,  king  of 
Spain. 

2.  Among  this  number,  for  example,  are  the  Ar- 
tikel  Brief,  or  regulations  of  the  states-general  of  the 
seven  united  provinces,  concerning  the  military,  and 
commercial  marine  ;  the  ordinances  of  Amsterdam, 
Rotterdam,  and  Middleburg,  relative  to  assurances 


Chap.  IV.  OF  EUROPE.  403 

Ordinances  and  placards  of  Holland,  relating  to  the  marine,  &c. 
rm  ... .  ...........  ,.  ■  ■  ■     ■ 

and  averages,  of  which  six  editions  have  been  pub- 
lished, since  the  first,  in  1703  ;  considerable  addi- 
tions were  made,  some  years  afterwards,  which  are 
mentioned  by  Ricard,  in  his  Traill  de  commerce 
(T Amsterdam,  part  2,  lib.  3,  art.  2.  This  power  pos- 
sesses, besides,  severa] placard'>,  the  most  remarkable 
of  which  are  those  of  the  6th  June,  1702,  to  re- 
ward privateers;  of  the  28th  July,  1705,  of  1717, 
1747,  and  1748,  for  the  same  object  ;(365)  the  pla- 
card and  instructions  for  privateers,  the  22d  Febru- 
ary, 1793,  confirming  the  former  of  1781.(366) 

3.  Holland  has  long  wanted  a  maritime  Code  of 
its  own.  It  was  difficult  to  establish  one  under  the 
former  system  of  government,  when  divided  into  se- 
ven provinces,  each  of  which,  or  rather  every  city, 
possessing  its  peculiar  usages,  and  private  interests, 
always  opposed  to  each  other,  it  was  impossible  to 
unite  in  the  establishment  of  a  general  system  of 
legislation.  At  the  present  day,  being  formed  into 
one  regular  republic,  when  a  general  peace  shall 
restore  maritime  commerce,  its  first  attention  will, 
without  doubt,  be  directed  to  the  security  of  their 
commercial  prosperity  by  good  laws. 


* 


{365)   Recueil  der  Placaaicn,  Ordonnentien,  ^-c.    Bentrefevde  de 
conrogen  en  rerdere  zcezacken,  t.  1 , 

(366)  Nitrre  Verzamelting  van  Placcalen,  torn.  1,  p.  36. 

"  In  Cleirac,  p.  302,  is  ihc  Coustoumier,  pour  I'/hsurances  d'Am- 
sterdam,  published  the  31st  January,  1598,  in  36  articles.... T. 


404  THE  MARITIME  LAW         Part  L 


Mai'itime  laws  of  Spain. — Various  Codes. 


ARTICLE  XVII. 

Of  the  Laivs  of  Spain. 

§  1 .  THE  civil  law  of  Spain  consists  of  a  great  num- 
ber of  particular  laws,  from  which  the  government  has 
from  time  to  time,  made  compilations  in  the  form  of 
Codes.  Of  these  the  most  ancient  is  that  of  Alphonso 
thelXth,  an  edition  of  which  was  published  in  1587, 
with  a  commentary,  by  Gregory  Lopez.  Others  ap- 
peared in  the  reigns  of  Ferdinapd  V  and  Isabella  of 
Castile,  and  Philip  II. 

2.  These  different  Codes,  designed  for  the  mer- 
chant,  as  well  as  the  military  marine,  have  particular 
titles,  such  as,  Fiiero  Juzgo,  Fuero  Beat,  Leyes  dc 
Fartidas,  Leyes  de  la  Recopilacion^  Curia  Philipica, 
These  different  collections,  form  the  principal  mari- 
time jurisprudence  of  that  vast  monarchy.  The  af- 
fairs of  commerce,  which  concern  individuals  only, 
are  decided  by  marine  usages,  in  the  manner  and 
form  received  among  the  Contractaciones,  that  is  the 
chief  commercial  houses,  in  the  great  cities  of  the 
kingdom. 

3.  The  Consolata  del  Mare  is  received  on  the 
coasts  of  the  Mediterranean,  belonging  to  Spain  ;  and 
in  relation  to  warlike  equipments,  assurances,  and  va- 
rious other  objects,  the  particular  ordinances  known 
by  the  name  of  Capitidos  de  Barcelona,  are  also  in 
force  in  those  parts  of  the  kingdom. 


Chap,  IV.  OF  EUROPE.  405 


DUVerent  Codes  of  maritime  law  in  Spain. 


4.  The  laws  and  ordinances  of  the  Consulate  of 
BiLboa  regulate  the  maritime  affairs  which  arise  on 
the  coasts  of  the  Atlantic.  They  were  arranged  and 
collected  for  the  last  time,  under  the  reign  of  Philip 
V,  and  approved  by  the  Council  in  1760  ;  some  or- 
dinances concerning  average,  and  assurances  were 
added  to  them,  in  1768. 

5.  All  matters  which  concern  the  commerce  of  the 
two  Indies  form  a  distinct  class,  and  arc  subject  to 
the  laws  and  usages  of  the  Contractacion,  or  Consii- 
late  of  Seville,  and  of  the  port  of  Cadiz,  and  to  the  de- 
cisions and  ordinances  of  the  royal  Council  of  the  In- 
dies. The  first  compilation  of  the  laws  and  usages 
for  those  countries,  was  made  in  1563  ;  two  others 
were  added  in  1680,  and  1696.  There  is,  besides,  a 
law  relative  to  privateers,  Ordenanza  paranavegar  en 
corso,  of  1621,  with  las  Cedulas*  of  1623,  and  1624, 
and  others  of  1702,  and  1718,  the  principal  ar^ 
tides  of  which  are  inserted  in  the  Tratado  subre 
de  las  PresaSy  by  D'Habreu  ,(367)  another  of  1740, 
and  the  last  of  the  1st  July,  1779,  with  the  regula- 
tion of  the  15th  March,  1780.(368) 

(367)  D'Habreu,  Traiado  sohre  las  presas.    Bcrtodaiio,  Collection 
de  las  Tratadosj  torn.  1,  p.  iii. 

(368)  Martens,  Rccueil  dcs  Traitcs,  torn.  4,  p.  329. 
*^'  Orders,  or  decrees. 


406  THE  MARITIME  LAW        Part  I. 

Maritime  laws  of  Portugal. — Laws  of  Antwei-p. 

ARTICLE  XVIII. 

Of  the  Laws  of  Portugal. 

§  i.  THE  maritime  laws  of  Portugal,  are  nearly 
the  same  with  those  of  Spain,  to  which,  as  a  part  of 
that  kingdom,  it  was  a  long  time  subject.  The  Portu- 
guese however,  have  some  particular  ordinances  of 
their  ancient  sovereigns,  which  were  afterwards  con- 
firmed by  John  of  Braganza,  on  his  coming  to  the 
throne,  at  the  time  of  the  revolution,  the  history  of 
Vv'hich  is  universally  known. 


ARTICLE  XIX. 

Of  the  Laws  of  Antivei^p. 

§  1 .  IN  former  times  the  city  of  Antwerp  was 
greatly  celebrated  for  the  magnitude,  and  extent 
of  its  commerce.  Assurances  formed  an  important 
branch  of  its  maritime  contracts,  in  the  best  days  of 
that  commercial  city.  The  immense  extent  of  its 
com.mercial  operations  and  navigation  gave  rise,  un- 
der the  dukes  of  Burgundy,  to  the  first  laws  worthy  of 
attention  on  the  subject  of  assurance.  Philip  lid, 
king  of  Spain,  in  1563,  added  some  ordinances  con- 
cerning xcrecks,  jettisons,  averages,  and  other  objects 
relative  to  navigation,  all  of  which  have  been  copied 
into  the  marine  ordinance  of  France.* 

•^  In  Us  et  Coutumes  de  la  Mcr,  by  Cleirac,  p.  295  to  302,  we 
find  the  ordinances  of  Philip  II,  relative  to  assurances  for  the  ex- 
change at  Antwerp,  in  20  articles,  published  at  Brussels,  the  last 
day  of  October,  1593 T. 


Chup.  IV.  OF  EUROPE.  407 


Destruction  of"  the  cotumei-ce  of  Antwerp. — Laws  of  Sweden. 


2.  The  power  of  this  city  has  been  destroyed  by 
one  of  those  revolutions  which  transfer  commerce  and 
the  arts  from  one  nation  to  another.  When  the 
Dutch  made  themselves  masters  of  the  navigation  of 
the  Scheldt,  this  city  lost,  in  a  great  measure,  its  com- 
mercial activity,  and  its  laws  are  no  longer  known, 
since  they  are  no  longer  supported  by  that  flourish- 
ing commerce  and  navigation,  which  first  gave  rise 
to  them. 


ARTICLE  XX. 

Of  the  Laics  of  Sweden. 

§  1.  IN  1608,  and  1618,  Sweden  published  some 
regulations  for  the  merchant-marine.  A  collection 
of  laws  has  also  been  made  under  the  title  o^  Legis- 
ierium  Suecicc.  This  collection  has  been  learnedly 
commented  upon  by  John  Loccenius.(369)  It  has 
been  enlarged  since  that  time  by  a  general  marine 
ordinance  published  by  Charles  XI,  in  1667,  to 
which  was  added,  on  the  20th  of  October,  1750,  an 


(369)  Joannis  Loccenii,  de  jure  marilimo.  This  work  has  just 
been  translated  into  French  by  M.  Bonncmart,  a  learned  lawyer, 
with  very  interesting  notes.    It  will  be  published  in  a  short  time.* 


•  Loccenius  was  a  learned  professor  of  law  at  Upsal  in  Sweden,  about 
the  year  1670.  His  book,  dc  Jure  Maritimo,  docs  not  profess  to  be  a  par- 
ticular commentaiy  on  the  laws  of  Sweden,  but  is  a  g'cneral  and  concise 
ireatis«  on  inantinnc  law T. 


i08  THE  MARITIME  LAW        Parti 

Laws  of  Sweden. — Laws  of  Denmark. 

ordinance  relative  to  assurances,  and  averages,  the 
greater  part  of  which  is  taken  from  the  marine  ordi- 
nance of  France,  of  168 1 . 

2.  Sweden  has  also  a  regulation,  relative  to  armed 
cruisers,  of  the  19th  February,  1715,  another  of  the 
28th  July,  1741  -,  a  declaration  of  the  same  regu- 
lation, of  the  14th  August,  1741;  articles  for  the 
government  of  the  naval  forces,  in  1755  ;  and  in- 
structions for  privateers,  published  the  1st  of  July, 
1788.(370)  The  present  war  has  induced  the  Swe- 
dish government  to  renew,  on  the  21st  of  January, 
1804-,  its  regulations  concerning  the  navigation  and 
commerce  of  its  subjects,  with  the  maritime  powers, 
in  time  of  war. 


ARTICLE  XXI. 

Of  the  Laws  of  Denmark. 

§  1.  THE  maritime  laws  of  Denmark,  published 
by  Christian  V,  are  contained  in  the  fourth  book  of 
the  Code  of  the  civil  laws  of  that  kingdom,  entitled. 
Jus  Daiiicum.  There  is  also  an  ordinance  concern- 
ing privateers,  of  the  5th  April,  1710,  confirmed  by 
another  of  the  6th  April,  1711.(371) 

(370)  Kluit.  Hist.  Ficd.  Belg.  part  2,  page  -l-Sg, 
r371)  Forord,  jIfFivid.  IV,  171 1,  p.  23. 


Chap.  IV.  OF  EUROPE.  4Q9 


Ordinances  of  Denmark. — Laws  of  Russia. 


2.  Christian  VI, on  die  1st  July,  1746,  published  hi§ 
royal  charter  to  the  assurance  company  instituted  at 
Copenhagen,  which  contains  many  wise  regulations, 
on  the  subject  of  insurance,  and  on  averages.  A  new 
royal  ordinance  of  the  4th  May,  1803,  regulates  the 
conduct,  and  ascertains  the  duties  of  merchants  and 
seamen,  belonging  to  the  Danish  dominions,  in  time 
of  war  between  the  maritime  powers.  Aplacardwas 
afterwards  published  by  the  king,  the  8th  June,  1 8U3, 
to  modify  the  IXth  regulation  of  that  ordinance  ; 
another  ordinance(372)  appeared  the  30th  Decem- 
ber in  the  same  year,  concerning  the  salvage  of  ships, 
and  goods  shipwrecked  on  the  coasts  of  Holstein,  or 
on  the  shores  of  the  Danish  provinces  in  Germa- 
Tiy.(373) 


ARTICLE  XXII. 

Of  the  Laws  of  Russia. 

§  1.  THE  sublime  genius  of  Peter  I,  and  his  en- 
terprising character,  gave  birth  to  a  project  unknown 
to  his  predecessors,  that  of  taking  a  distinguished 
rank  among  the  powers  of  Europe,  though  most  of 
his  dominions  lay  in  Asia.  Enlightened  by  the  va- 
rious observations  made  during  his  travels,  in  which 
he  spent  two  years,  in  disguise,  under  the  name  of 
Michaelof,  in  the  ship-yards  of  Amsterdam  and  En- 
gland, where  he  learned  the  art  of  ship-building.  In- 

(372)  See  Blhiiolhequc  Commcrciale,  by  M.  Pfticiief.  180" 

(37  3)  BibliotheqKC  Ccmmerclnle,  IHO".. 
Vol.   J.  .IF 


410  THE  MARITIME  LAW        Parti. 

Great  enterprises  of  Peter  I. 

structed  by  the  counsels  of  men  of  merit  assembled 
around  him,  Peter  soon  perceived,  that,  to  obtain  an 
influence  in  the  affairs  of  Europe,  it  was  necessary 
to  open  a  vent  into  the  Baltic  for  the  numerous  and 
rich  productions  of  his  vast  empire,  and,  at  the  same 
time,  to  establish  a  military  marine,  that  might  make 
him  known  to  the  other  European  powers,  and  to 
give  law  to  those  of  the  North. 

2.  The  inconsiderate  war  commenced  against 
him  by  Charles  XII  of  Sweden,  who  was  beaten 
at  Pultowa,  the  naval  victory  obtained  over  the  Swe- 
dish admiral  Ockrenskield,  enabled  the  Czar  to  at- 
tain his  first  object.  He  penetrated  through  Ingria 
to  the  gulf  of  Finland,  and  soon  after,  in  1703,  the 
superb  city  of  Petersburg  arose  out  of  the  marshes 
of  the  Neva,  to  become  the  capital  of  the  Russian 
empire,  destined  one  day  to  be  ruler  of  the  Baltic, 
He  executed  the  dif^cult  work  of  forming  a  junc- 
tion between  the  two  rivers,  which,  traversing  his 
empire,  open  a  course  of  more  than  eight  hundred 
leagues  from  Petersburg  to  the  Caspian  sea,  at  the 
same  time  that  he  civilized  the  inhabitants  of  the 
arid  deserts  of  Siberia.  Peter  having  crushed  Swe- 
den, and  subverted  the  power  of  Poland,  laid  the 
foundation  of  that  grandeur  and  glory,  which  the 
nation  of  the  Aluscovites,  a  nation  of  barbarians  at 
the  close  of  the  17  th  century,  has  now  attained. 

3.  Notwithstanding  all  these  advantages,  and  the 
rich  productions  of  his  empire,  the  Czar  did  not  disco- 
ver the  true  system  of  encouraging  the  navigation  of 
his  subjects,  by  wise  laws,  and  by  the  establishment 


Chap.  IV.  OF  EUROPE.  41 1 

• '  ... 

Maritime  laws  and  tribunals  of  Russia. 

of  a  sufficient  number  of  tribunals  for  the  special  pur- 
pose of  deciding  all  maritime  affairs.  He  did  too 
much  for  his  naval  forces,  and  not  enough  for  the 
merchant-marine.  If  he  had  employed  a  part  of  the 
sums  expended  on  useless  gallies,  and  a  moderate 
fleet,  in  giving  facility  to  the  commerce  of  the  ports 
of  Riga,  Petersburg,  Revel,  and  Archangel,  the 
marine  of  his  vast  dominions  v^'ould  have  felt,  at  the 
present  day,  the  beneficial  effects  of  such  a  measure, 
while,  in  fact,  it  now  falls  far  short  of  that  magni- 
tude, importance,  and  prosperity,  it  might  have  at- 
tained. 

4.  There  arc,  it  is  true,  several  tribunals  in  Rus- 
sia, which  take  cognizance  of  maritime  and  com- 
mercial disputes,  according  to  the  account  given  us 
by  M.  Peuchet,  in  the  second  volume  of  his  com- 
mercial dictionary.  These  are,  the  court  of  the  cus- 
toms, which  decides,  in  a  summary  way,  all  matters 
demanding  a  speedy  determination  ;  the  exchange 
magistrate,  to  whom  is  referred  questions  as  to  char- 
ter-parties, bills  of  exchange,  and  other  obligations 
of  a  similar  nature  J  the  court  of  police,  which  takes 
cognizance  of  affairs  incident  to  that  part  of  the  in- 
ternal administration  ;  the  senate,  before  whom  is 
brought  all  matters  in  controversy  between  parties, 
that  require  a  legal  discussion  and  a  formal  determi- 
nation :  but  all  these  courts,  for  want  of  precise  laws, 
are  very  slow  in  giving  judgment.  The  college  of 
commerccy  as  it  is  called,  constituted  by  a  special 
commission  from  the  sovereign,  must  be  considered 
j^s  a  council  of  statesmen,  who  regard  merely  the 


412  THE  MARITIME  LAW        Part  L 


Delays  in  the  decision  of  causes  in  Russian  com-ts. 

grand  features  of  commerce,  and  take  notice  of 
those  affairs  only  that  are  essentially  connected  with 
the  political  views  of  the  government. 

5.  The  decision  of  causes  litigated  in  the  Russian 
territories,  on  the  Black  Sea,  is  far  more  tardy  than 
at  Petersburg,  because  the  native  Russians,  sure  of 
finding  favor  there,  are  certain  of  bringing  before  the 
senate  all  the  causes  the  least  compHcated,  which 
cannot  be  determined  by  the  summary  adjudication 
of  the  court  of  customs,  or  the  other  courts  establish- 
ed there  ;  a  foreigner  is  thus  compelled  to  go  to  the 
capital  to  plead  his  cause  in  person,  or  to  employ  a 
Jawyer,  which  renders  the  proceedings  more  ex- 
pensive, difficult,  and  dilatory. 

6.  Catharine  II,  who  governed  the  Russian  em- 
pire with  so  much  glory,  perceived  the  necessity  of 
creating  a  Code  of  maritime  law  for  her  dominions  : 
she  laid  the  basis  of  it  in  the  plan  which  she  publish- 
ed for  making  the  compilation.  She  openly  expres- 
sed her  opinion,  in  1780,  on  the  sole  object  of  the 
conventions  she  had  produced  among  the  maritime 
powers  of  Europe,  as  to  the  effect  of  establishing  a  . 
maritime  Code,  which  should  forever  fix  the  rights  of 
neutral  nations,  in  time  of  war.  In  the  mean  time, 
she  began  by  publishing,  in  1784,  an  ukase,  or  ordi- 
nance, making  some  alterations  in  the  former  com- 
mercial regulations,  for  the  possessions  she  had  ac- 
quired on  the  Black  Sea,  and,  principally,  for  the  city 
of  Cherson,  founded  by  her,  on  the  banks  of  the  Dnei- 
per.  By  an  ukase  of  the  31st  December,  1787,  she 
published  regulations  for  privateers,  and  concerning^ 


Chap.  IV.  OF  EUROPE.  41  ^ 

Laws  ofotlier  Nortliem  states  of  Europe. 

privateering,  in  time  of  war.  These  regulations,  for 
their  wisdom,  deserve  to  be  imitated  by  the  other 
powers  of  Europe. (37 4)  Alexander  I,  the  worthy 
successor  of  that  great  princess,  considering  the  sa- 
gacity of  his  character,  will  not  tail  to  follow  the  plan 
traced  out  by  his  illustrious  ancestor,  and  to  give  to 
his  empire  a  Code  of  maritime  laws,  the  want  of 
which  is  every  day  felt  in  the  course  of  commercial 
and  maritime  transactions. 

ARTICLE  XXIII. 

Of  the  Laxvs  of  other  Northern  States  of  Europe. 
§  1.  PRUSSIA,  Lubeck,  and  some  of  the  Han- 
seatic  cities,  regulate  their  maritime  affairs  by  par- 
ticular statutes  j  but  it  is  not  known  that  any  other 
cities,  dependent  on  the  German  empire,  or  the  em- 
peror, have  any  laws  on  this  subject.  It  is  well 
known  how  celebrated,  throughout  all  Germany,  is 
the  Judicium  mercatorum ;  besides,  all  the  countries  in 
which  the  civil  law  is  observed,  have  recourse  to  that 
as  the  common  law,  for  the  decision  of  all  matters  re- 
lating to  commerce  and  navigation,  whenever  the  lo- 
cal laws  arc  silent  on  the  subject. 

2.  In  the  countries  subject  to  the  dominion  of  the 
house  of  Austria,  the  city  of  Trieste,  with  its  depen- 
dencies, such  as  Fiumo,  Carlobargo,  and  Portoro,  re- 
gulate their  maritime  affairi.;,  in  conformity  to  the 
edict  o^  merchant-navigation,  promulgated  by  the  em- 
press Maria  Theresa,  the  25th  April,  1774. 

(374)  See  the  Collection  of  treaties,  by  the  learned  M.  Martens, 
Vol.  4,  page  507. 


414  THE  MARITIME  LAW        Parti. 


Of  tlie  Ottoman  la«g. 


ARTICLE  XXIV. 

Of  the  Ottoman  Laws. 

§  1 .  WE  do  not  know  of  any  maritime  laws  pecu- 
liar to  the  Ottoman  empire,  and  to  the  regencies 
established  on  the  Barbary  coast,  subject  to  the  grand 
Seignior.  It  appears,  that  they  are  acquainted 
with  no  other  than  those  of  the  nations  with  whom 
they  traffic.  Formerly,  vessels  were  not  allowed  to 
navigate  in  the  different  ports  of  the  Levant,  except 
under  the  protection  of  the  French  flag.  The  con- 
suls of  that  nation  were  the  only  judges  of  all  differ- 
ences relative  to  maritime  commerce,  either  between 
Frenchmen  and  Turks,  or  between  the  former  and  the 
inhabitants  of  the  country.  But,  at  the  present  day, 
an  entire  change  has  taken  place,  since  other  nations 
are  permitted  to  trade  there  in  their  own  names. — 
The  Cadis  of  the  different  sea-ports,  in  fact,  ob- 
serve the  different  usages  adopted  by  the  different 
commercial  nations,  and  religiously  conform  to  them, 
in  deciding  differences  of  a  mercantile  nature,  which 
arise  between  Turks  and  strangers,  and  it  sometimes 
happens,  that  even  the  French  are  subject  to  their 
jurisdiction.* 


*  The  French  have  now  lost  all  favour  and  influence  in  the  do- 
minions of  the  Ottoman  Porte,  and  the  English  have  become  the 
most  favoured  nation,  and  will  probably,  by  means  of  their  great 
naval  power,  and  the  possession  of  Gibraltar  and  Malta,  maintain 
that  ascendancy  in  the  Mediterranean  once  held  by  the  French. ...T. 


Chap.  IV.  OF  EUROPE.  415 


Maritime  Jaws  of  Naples. — New  Code  projected. 


ARTICLE  XXV. 

Of  the  Laws  of  Naples. 

§  1.  CHARLES  III,  who  died  king  of  Spain, 
when  he  was  king  of  Naples,  collected  all  the  most 
useful  and  necessary  laws  relative  to  navigation,  and 
maritime  commerce,  in  the  1 4th  act*  of  the  31st  Ja- 
nuary, 1759,  and  reduced  them  into  72  chapters.  To 
prevent  any  confusion,  he  abolished  all  former  de- 
crees, and  all  previous  laws  relative  to  maritime  sub- 
jects. 

2.  Ferdinand  IV,  the  reigning  king  of  Naples,  by 
the  18th  act,  of  the  5th  February,  1764,  entitled,  De 
officio  supj^emi  magistratus  commerci?\  has  regulated 
and  placed  in  better  order  the  jurisdiction  of  the  su- 
preme magistrate  of  commerce,  as  well  as  that  of  the 
Consulate,  by  specifying  the  particular  cases  in  which 
each  must  exercise  their  jurisdiction. 

3.  Persons  are  already  engaged  in  this  kingdom, 
in  the  compilation  of  a  new  maritime  Code,  the  pub- 
lication of  which  is  expected. (37 5)  The  king,  after 

*  Pragmatique. — This  word  is  often  used  substantively  to  sig- 
nify those  acts  or  ordinances,  which  are  passed  by  a  sovereign  to 
regulate  his  own  estates  and  family. ...T. 

(375)  In  1789,  during  my  journey  to  Naples,  I  had  occasion  to 
read  this  new  Code,  which  was  about  to  be  printed  in  tour  volumes 
quarto,  of  500  pages  each.  The  disgusting  prolixity,  and  want  of 
method  in  this  work,  which  has  been  executed  by  M.  Jorio,  then 
a  member  of  the  court  of  commerce,  made  me  suppose  that  i^ 
would  never  be  published,  and  the  cr«nt  has  so  far  justified  mv 
predictions. 


416  THE  MARITIME  LAW        Parti 

Maritime  laws  of  Venice. 

making,  on  the  20th  February,  1764,  an  ordinance 
relative  to  marine  assurances,  which  is  a  sequel  of 
the  edict  of  his  father,  published  the  11th  April, 
1761,  has  thought  proper  to  abolish  the  court  of  the 
high  admiral,  and  to  substitute  in  its  place,  by  an 
edict  of  the  6th  December,  1783,  a  tribunal,  called 
the  admiralty,  to  which  is  given,  the  jurisdiction  of 
maritime  affairs.  He  has,  besides,  published,  in  an 
edict,  of  the  15th  March,  1787,  a  tarif  of  Consular 
fees.  In  all  other  cases,  the  ancient  acts,  and  the 
decisions  of  the  civil  tribunal  are  observed.  The 
marine  ordinance  of  France,  of  1681,  possesses  great 
authority  there. 

ARTICLE  XXVI. 

Of  the  Laws  of  Venice. 

§  1.  VENICE  is  the  only  Italian  state  which  has 
executed  the  great  work  of  a  particular  maritime 
Code,  adapted  to  its  local  circumstances.  This  re- 
public may  boast  of  being  the  first  in  Italy  which 
has  a  complete  body  of  laws  relative  to  the  affairs  of 
maritime  commerce.  It  was  published  in  1786,  un- 
der the  title  of  the  Codice  per  la  Veneta  mercantile 
marina.  It  was  approved  by  a  decree  of  the  Senate, 
the  20th  September,  in  the  same  year,  and  has  thus 
acquired  the  force  oi  law.  A  supplement,  contain- 
ing some  corrections  and  alterations,  was  added, 
sanctioned  by  two  decrees  of  the  Senate,  the  one  on 
the  6th  August,  and  the  other  the  19th  September, 
of  the  same  year. 


VMp.  IV.  OF  EUROPE.  417 


Maritime  laws  of  Tuscany. — Laws  of  Genoa. 


ARTICLE  XXVII. 

Of  the  laws  of  Tuscany, 

§  1.  TUSCANY  possesses  no  other  maritime 
laws,  than  those  contained  in  the  ancient  statutes  of 
the  offices  of  assurances  in  the  city  of  Florence, 
pubiislied  the  13th  March,  1522,  by  the  council  of 
one  hundred ;  but  there  is  a  very  concise  edict  of 
the  10th  of  October,  1748,  on  commerce  and  the 
mercantile  marine,  to  which  were  added,  in  1787, 
the  laws  and  orders  already  published  to  regulate 
the  police  of  the  harbour,  and  the  wet  docks  and 
basons,  adjacent  to  the  port  of  Leghorn.  The  queen 
regent,  infanta  of  Spain,  desirous  of  distinguishing 
her  government  by  some  signal  act  of  glory,  will, 
without  doubt,  prepare  a  new  Code  on  maritime 
affairs,  of  which  the  commercial  places  of  Tuscany 
have  much  need.* 


ARTICLE  XXVIII. 

Of  (he  Laws  of  Genoa. 

§   1 .  THE  republic  of  Genoa  has  no  other  regu- 
lation for  its  maritime  affairs,  than  an  ancient  sta- 

*  In  the  former  edition  of  this  work,  written  before  the  Italian 
slates  were  drawn  into  the  tremendous  vortex  of  the  French  revo- 
Jution,  and  before  their  governments,  their  laws,  their  wealth,  and 
power,  became  the  prey  of  the  rapacious  invaders  of  Italy,  the 
preceding  part  of  this  sentence  was  filled  with  tiie  name  of  Ferdi- 
nand III,  whom  the  author  praised  for  his  glorious  reform  in  the 
criminal  Code  of  Ti:scanv....T. 

Voj,.  I.  '  3  G 


4ld  THE  MARITIME  LAW        Parti. 

Laws  of  Genoa. — Laws  of  Sardinia. 

tute  pubJished  in  1610,  in  which  mention  is  made, 
book  2,  chap.  4,  in  very  concise  terms,  of  some  very 
brief  causes,  relative  to  maritime  affairs.  The  16th 
chapter  of  the  4th  book  treats  o^  jettisons,  and  of  the 
conduct  which  ought  to  be  observed,  on  such  occa- 
sions, Genoa,  also,  adheres  to  the  decisions  of  its  ci- 
vil tribunal  called  the  Rota."*  The  lava's  of  the  Con- 
solato  del  Mare,  are  in  full  force  there.  The  work 
of  Targa,  also,  entitled,  Ponderazioni  Maritime,  is 
of  high  authority  in  the  tribunals  of  commerce. 
This  work  is  in  all  respects  conformable  to  the 
usages  prescribed  by  the  Consolato  del  Mare,  and 
to  the  ancient  maxims  of  that  place,  which,  for  want 
of  a  stable  law,  adapted  to  the  circumstances  of  the 
times,  are  often  in  opposition  to  the  new  decisions  of 
the  magistrates,  and  to  existing  usages. 


ARTICLE  XXIX. 

Of  the  Laws  of  Sardinia. 

§  1.  THE  maritime  states  of  the  continent,  sub- 
ject to  the  king  of  Sardinia,  are  acquainted  with  no 
other  marine  laws  than  those  contained  in  the  royal 
edict,  rendered,  the  12th  March,  1749,  for  the  free 
port  of  Nice,  which  renewed,  and  considerably  en- 
larged, the  privileges  and  immunities  given  by  for- 
mer edicts,  one  of  1613,  and  another,  for  the  re-es- 
tablishment of  the  supreme  magistracy  of  the  Consu- 
late in  that  city,  of  the  15th  of  July,  1750.  This  edict 

*  Many  of"  tlie  decisions  of  this  court  arc  to  be  found  in  Straccha 
de  Mcrcatura...,T. 


Chap.  IF.  OF  EUROPE.  419 


Maritime  laws  of  Sardinia. 


increased  the  dignity,  and  extended  the  jurisdiction 
of  this  court  erected  by  the  edict  of  the  15th  Octo- 
ber, 1733.(376)  In  these  edicts  are  a  few  articles 
relative  to  marmc  assurances,  and  shipwrecks.  As 
to  all  other  matters,  the  Roman  law,  the  Consolato 
del  Ma?\;  and  the  decisions  of  the  tribunals  above 
mentioned,  have  the  force  of  Jaw. 

2.  At  the  period  of  the  publication  of  the  laws 
contained  in  the  Consolato  (^lel  Ma?r,  Sardinia  \n  as 
under  the  dominion  of  the  republic  of  Pisa.  After 
several  times  expelling  the  Saracens,  commanded  by 
their  king  Musetto,  they  divided  the  island,  in  1021, 
into  four  judicatories. (377)  From  1165,  it  was  posses- 
sed by  the  PIsans  as  a  perpetual  imperial  fief,  granted 
to  them  by  Frederick  II,  emperor  of  the  Romans, 
until  1327,  when  they  were  compelled,  by  force  of 
arms,  to  yield  it  to  king  James  of  Arragon.(378) 
From  this  it  may  be  presumed,  with  the  greatest 
reason,  that  Sardinia,  until  that  period,  must  have 
regulated  its  maritime  affairs,  according  to  the  laws 
of  the  Pisans,  which  were  already  observed  by  other 
nations  engaged  in  maritime  commerce. 

(376)  It  is  in  this  Court  that  I  liad  the  honour  to  sit  as  a 
Judge,  with  the  title  of  Senator,  from  the  year  1782  to  the  29th 
September,  1792,  when  the  armies  of  the  French  repubhc  seized 
on  the  county  of  Nice. 

(377)  Sec  my  Geographical,  political,  and  natural  history  of 
Sardinia,  Paris,  1802,  Vol.  I. 

(37S)  Treaty  of  peace  made  at  Barcelona  in  1327,  between  thr 
king  of  Arragon,  and  the  republic  of  Pi?a. 


420      ^    THE  MARITIME  LAAV        Part  I. 


Laws  of  the  Consolato  del  Mare  in  force  iti  Sardinia. 


3.  The  island  having  passed  under  the  dominion 
of  the  king  of  Arragon,  and  received  the  same  form 
of  government  to  v^'hich  the  Catalonians  were  sub^ 
ject,  the  inhabitants  were  directed  to  conform  to 
the  usages  and  customs  of  Arragon,  and  in  particu- 
lar, to  the  Consolato  del  Mare,  published  at  Barce- 
lona. This  is  the  reason  why  Vico,  in  his  compila- 
tion of  the  royal  acts  of  Sardinia,  title  48,  says,  that 
the  Consul  was  bound  to  conform  to  every  thing 
prescribed  in  the  2'2d  chapter  of  the  Consolato ;  and 
this  is  so  scrupulously  observed,  that  the  secretary  to 
the  magistrate,  in  the  register  which  he  makes  of  the 
departure,  and  arrival  ot  vessels,  never  fails  to  enter 
the  act  of  search,  del  Gatto^  prescribed  by  the  67th 
chapter  of  the  Consolato.* 

4.  From  the  observations  communicated  to  me 
by  M.  Chevalier  Cossu,(379)  mv  worthy  and  ge- 

*  Gatto,  Cat. — This  is  the  66th  chapter  of  tlie  Consolato  del 
Mare,  in  the  edition  of  Casaregisof  1737. 

(379)  M.  Chevalier  Cossu,  is  a  man  of  distinguished  learning, 
who,  on  account  of  his  literary  works^  deserves  wellof  his  country. 
After  the  publication  of  the  first  Italian  edition  of  my  former  work;, 
he  did  me  the  honour  to  write  me  the  following  letter,  which  is  too 
valuable  for  me  to  omit  this  opportunity  of  preserving. 

^'Cagliari,  29  maggio  1795. 
"  Signor  Stnatore  stimatissimo. 

"  Appena  riconstrato,  che  pervenne  in  questa  capitale  il  primo 
tomo  dell'  opera  da  V.  S.  illustrissiina  recenlemente  lavorata,  rap- 
portante  il  Siaiemu  universale  de'i  Frincipii  dcldiritto  maritihno  dell- 
Europa,  siccome  ebbi  la  soddisfazione  di  leggere  il  Yaggionato  di 
lei  Dizionario  universale  della  Giuritprudenza  mercantile,  mi  pro- 
cur^i  un  esemplare  di  questa  nuova  produzione  propria  della  pre- 


Chap.  IV.  OF  EUROPE.  421 

Ancient  acts  and  laws  of  Sardinia. 

nerous  friend,  and  countryman,  it  appears  that  there 
still  exists  in  the  archives  of  the  city  of  Cagliari,  a 
book  entitled,  Libre  dc  Consulat  dels  fets  maritimo^ 
which  is  probably  the  same  as  that  mentioned  in 
article  8 ;  also,  a  privilege  granted  by  Peter  I,  in  favor 
of  the  Catalonians,  beginning   with  Recognovcnmt 


sente  stagionc.  Fii  in  vero  tanto  soddifacente  il  piacere  ch' ebbi 
iiel  leggerla,  che  stimai  rileggerla,  e  farvi  diversi  riflessi,  trattando 
una  maleria,  che  interessa  grandementc  qiiesto  regno,  il  quale  per 
csserc  isolate  ha  molta  maggior  cstensione  nel  marc  territoriale, 
che  nella  superficie  tcrrena  :  anzi  per  tutto  quel  vasto  mare,  che 
lo  bagna  dalla  parle  di  ponente,  gli  antichi  geografi  I'atlribuirono 
la  dcnoniinazione  di  mar  Sardo ;  ed  a  quella  che  trascone  tra  I'es- 
tremita  Settentrionale  di  Sardcgna  c  meridionaledi  Corsica  (stretlo 
di  Sardcgna.)  Ebbi  in  consegucnza  pure  la  dolce  compiacenza  di 
sentire,  che  le  persona  di  vaglia  encomiavano  il  lavoro,  e  si  com- 
piacevano  meco,  che  un  Patrizio  di  Sassari  acquisti  presso  le  piu 
cuke  nazioni  quel  credito  senipre  maggiore,  che  le  utilissime  sue 
letterarie  produzione  le  tanno  giustamente  meritare.  All'  oggetto 
pero  non  consideri  questa  mia  asserzione  adulatoria  per  la  prima 
>'olta  che  ho  il  vantaggio  di  scriverle,  sofira  che  gli  csterni  il  desi- 
derio,  che  avrei  avuto  di  non  osscrvarlo  tanto  conciso  nell'  articolo 
25  (ora  articolo  29,)  nel  quale  annunzia  le  Sarde  leggi  marittiinc, 
poicche,  se  gli  sfati  del  nostro  sovrano  al  di  la  del  mare  non  conos- 
cono  che  gli  editti  del  1613,  1626,  1733,  1719,  e  1750,  la  Sar- 
dcgna sa  questo  particolare,  oltre  I'editto  delli  30  agosto  1770 
conserva  ne'  suoi  archivi  quanto  ho  stimato  notare  nell'  unito  tbglio. 
Spero  che  vorra  condonarmi  I'ardire  d'ofhirli  queste  notizie  di  latto 
per  tarne  quell'  usoche  stimera.  Dobbiamo  alia  patria,  con)e  dice, 
j>cguendo  Temislocle,  il  Vico  nel  proemio  delle  Sarde  Pramma- 
tiche,  rispetti  quasi  divinali,  ed  il  servire  la  propria  patria  non  e 
un  dovere  chimerico,  ma  un  obbligo  reale,  onde  occorrendo  di  dover 
di  essa  far  menzione,  romettcre  d'un  Sardo  quanto  concorre  per 
illustrarla  in  questi  tempi  massime,  gli  attira  un  capo  di  accusa,  e 
regolarmente  da  quei,  che  non  dando  fuori  letterarie  fatiche  con 
Iroppa  facilita  prendona  a  ccnsiirare  le  allrui.     Emcnlre  anzioso  di 


422  THE  MARITIME  LAW        Parti. 

Vai-ious  acts  and  maritime  regulations  of  Sardinia. 

proceres,  communicated  to  the  city  of  Cagliari,  to  be 
in  force  there,  with  two  other  chapters  relative  to 
commerce,  as  well  as  an  explanation  published  by 
king  James  I,  his  successor,  in  August,  1271  j  the 
37  chapters  of  king  Peter  III,  in  the  Catalonian  lan- 
guage, dated  the  10th  of  the  Kalends  of  December, 

leggereil  secondo  tomo  di  quest  opera  ed  altre  sue  letterarieprodu' 
zioni  alle  quali  prego  di  farmi  associare,  con  insuperabile  stima  et 
sincere  afletto  ml  do  Tonore  di  protestarmi  qual  sono. 

"  Div^"°  obb™°  servidore, 
"  Cossu." 

My  answer  to  this  obliging  letter;  dated  Florence,  2d  July,  179jj 
is  in  these  words : 

"  Quanto  sono  senslbile,  Sigi'  Cave  stimatissimo,  alie  gentili  es- 
pressioni  colle  quali  ella  mi  onora,  nella  di  lei  lettera  del  29  scorso 
maggio,  altrettanto  mi  dichiaro  riconoscentc  alia  bonla  che  ha  avuta 
di  notarmi,  nel  foglio  alia  medesima  unito,  tutto  cid  die  poteva 
aver  rapporto  alia  no<;tra  Icgislazione  sulle  cose  maritime.  Mi  rin- 
cresce,  the  le  memorie  da  lei  favoritemi  siano  pervenute  dopo  la 
pubblicazlone  del  prime  tomo,  giacche  non  saprei  piu  rimediare 
alia  mancanza  involuntaria,  che  ho  commessa  nell'  articolo  23,  da 
lei  giiistamente  rilevata.  Non  manchero  per  altro  di  tenerne  conto 
per  I'occorrenza  d'una  nuova  edizione;  ed  in  tal  caso  rendero  gius- 
tizia  al  di  iei  merito  con  farlene  tutto  I'onore.  Mancando  io  dalla 
patria  doppoi  ventidue  anni  non  potevano  essermi  noti  gli  antichj 
documenti  e  le  materie  che  contengono :  tanto  piu  dunque  le  ne 
debbo  la  mia  riconoscenza  per  avermene  ella  somministrati  gh  op- 
portuni  riscontri  senza  richiedernela;  ed  in  cio  hoammirato  il  sin- 
cere elodevole  di  lei  patriotismo  abbastanzaconosciuto  per  le  varie 
eccellenti  produzioni,  che  ella  ha  pubblicate  sulle  cose  patrie.  Per- 
raetta  una  volta  il  cielo,  che  venga  nell'  idea  del  governo  la  cor- 
raglosa  risoluzione  di  ritormare  I'indigesta  immensa  mole  delle 
nostre  leggi,  per  ridurle  a  quella  semplicita  altrettanto  desiderata 
in  simili  materie,  quanto  proficua  ai  cittadini.  Ignorcra  ella  f'orse_ 
che  ne!  1790,   ml   fu  ordinata  dal  sovrano  la  compilazione  d'un 


Chap.  IV.  OF  EUROPE.  42: 


Ordinances  for  regulating  maritime  affairs  in  Sardinia. 


1340,  for  the  regulation  of  maritime  affairs,  which  he 
ordered  to  be  observed  in  the  kingdoms  of  Arragon, 
Valencia,  Sardinia,  Corsica,  and  the  province  of  Bar- 
celona ;  the  29  chapters  which  the  counsellors  of 
Barcelona  published,  relative  to  marine  assurances,  in 
1484,  with  various  other  ordinances,  emanating  from 
those  sovereigns,  Irom  the  authority  of  the  civil  ma- 
gistrate, and  some  others,  collected  by  the  Cortes,  or 
general  assemblies,  at  the  instance  of  the  magistracy  of 
Cagliari,  and  particularly  those  by  the  Cortes,  held  in 
1G05,  under  the  Viceroy,  Count  Dclda  ;  in  1615,  by 
the  Duke  de  Gandia  ;  in  1663,  by  the  Marquis  of 
Bayonne,  all  of  which  are  given  by  Dexart,  in  his 
collection,  entitled,  Capi/utos  de  Corte,  from  the  year 
1421,  to  1633,  under  the  title  de  Gravaminibiis.  We 
find  also  in  the  same  collection,  book  3,  lib.  12,  chap. 
30,  that,  in  1605,  and  1633,  they  had  fixed  the  juris- 
diction of  foreign  Consuls,  resident  in  the  kingdom, 
after  the  abolition  of  the  treaty,  called  mealla,  or  vial- 
la,  which  took  from  them,  and  gave  to  the  consular 

nuovo  Codlce  di  leggi  siilla  marina  mercantile  per  tutti  gll  s(a(i  di 
S.  M.  lo  resegiiii  ed  ebbi  I'onore  di  rassegnarlo  al  "^ovTano  nei 
principio  d'ottobre  del  1791.  Fu  il  mio  lavoro  assai  gradito,  c 
lodato,  ma  fu  posto  anche  in  oblio.  Non  posso  dire  se  il  poco  me- 
rito  del  lavoro,  o  I'invidia  I'abbian  fatto  metterc  da  parte.  In 
tjualunque  modo,  io  I'ho  sempre  sotlo  gli  occlii  e  mcdito  la  sua  piib- 
blicazionej  sia  per  utile  della  societa,  die  per  mio  proprio  interesse, 
onde  non  sia  un  giorno  obbligato  ancli'  io  di  ripettere,  has  ego  rei- 
siculos  feci,  tulit  alter  honores.  Mi  onori  de  di  lei  prcziosi  coman- 
di,  e  mi  creda  collapiii  pcrletta  Jlima  e  considerazionc. 

De"^o  abU"o  servidore, 

D.  A.  AzifNT. 


424  THE  MARITIME  LAW        Part  I. 

Maritime  laws  now  in  force  in  Sardinia. 

magistracy,  the  jurisdiction  over  all  foreigners  who 
had  no  Consul  of  their  own  nation,  and  to  take  them 
under  its  care  and  protection,  until  they  should  be 
provided  for  by  their  respective  governments. 

5.  The  laws  relative  to  maritime  affairs  now  in 
force  in  the  kingdom  of  Sardinia,  are,  the  Considaio 
del  Mare  above  mentioned,  in  all  the  cases  which 
have  not  been  expressly  abrogated  by  the  decrees  of 
the  sovereigns  of  Arragon,  or  by  the  Capitulos  de 
Corte^  published  under  the  government  of  the  reign- 
ing house  of  Savoy  ;  the  last  edict  of  Charles  Emma- 
nuel, for  establishing  Consulates  throughout  his  king- 
dom, dated  the  30ih  August,  1770,  exactly  copied 
from  that  relative  to  the  Consulate  oi  Nice,  and  con- 
firming to  the  captain-general  of  Cagliari,  the  privi- 
lege of  deciding  causes  relative  to  marine  captures, 
as  well  as  the  right  of  a  general  intendant  to  deter- 
mine all  cases  of  seizure  for  contraband  ;  the  edicts 
of  the  government  and  magistracy  of  the  royal  Au- 
dience of  the  United  Chambers  3  and,  lastly,  in  case 
of  necessity,  the  Roman  law. 


END  OF  VOL.  I. 


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